C2E2 Variant Drama 24 24

[GACollectibles]

On 8/11/2022 at 11:12 AM, Dr. Balls said:

As a seller, I can specify that people who have 3 unpaid strikes in a month can't bid - but for a buyer to get that mark on their account you actually have to file an unpaid bidder report - which is a drawn out process compared to just cancelling your auction and starting it over again.

You used to file an unpaid claim but now the instructions are to cancel the transaction and buyer gets unpaid cancellation on their account, an accumulation which can cause them to have purchasing limits or lose their buying privileges.  When they first eliminated the unpaid claim it was frustrating that the buyer may have no consequence for not paying, but they appear to have addressed that.

.Per eBay Help page-

Buyers must pay for the items they purchase on eBay within 4 calendar days.

If the buyer doesn't pay within this timeframe, the seller can cancel the order and an unpaid cancellation will be recorded on the buyer's account.

What is the policy?

When a buyer commits to buy something on eBay - by winning an auction, agreeing to an offer with a seller, or selecting Buy It Now in a listing - they are obligated to complete the purchase by sending full payment to the seller.

Before they commit to buy, buyers should note:

• All the terms that the seller has included in the listing, including shipping and handling costs
• Placing a bid on an auction is a commitment to buy, and bids can only be retracted under exceptional circumstances

Failure to pay for items is a violation of our abusive buyer policy.

When a seller cancels an order because the buyer hasn't paid, the unpaid cancellation is recorded on the buyer's account. Buyers who have excessive unpaid cancellations may have limits imposed by a seller or by eBay, or lose their buying privileges. In some circumstances, buyers can appeal an unpaid cancellation recorded on their account.

Managing unpaid orders

• Sellers can cancel an order if the buyer hasn't paid after 4 calendar days and up to 30 days after the order is placed. Learn more in our Order cancellation policy
• Sellers may be eligible for fee credits according to our fee credits policy
• Sellers shouldn't use the reason "Buyer hasn't paid" to cancel an order when the buyer has paid, or they may:
  • Have all credits reversed for the time period in question
  • Lose the ability to use the fee credit system
  • Be subject to suspension
• eBay will automatically remove any feedback left by a buyer who didn't pay for an order when:
  • The seller cancels the order due to the buyer's failure to pay
  • The buyer is suspended

Activity that doesn't follow eBay policy could result in a range of actions including for example: administratively ending or canceling listings, hiding or demoting all listings from search results, lowering seller rating, buying or selling restrictions, and account suspension. All fees paid or payable in relation to listings or accounts on which we take any action will not be refunded or otherwise credited to your account.

 

[DrunkWooky]

On 8/11/2022 at 9:33 AM, Mike's Rack said:

They will now…

I always laugh when I come across a strange outlier of a contract provision or statute. "Wow, I want to hear the story about why that became an issue!"

I was doing research on DUI laws in law school and found the Michigan one: "unlawful to drive upon the frozen boundary waters".  Michigan: "Ok, guys, enough drunk Truckscapades!"

I think Georgia or Alabama: "huffing glue counts."  Georgia or Alabama: "Alright, everybody, yes huffing solvents counts as driving under the influence. Please settle down!"

[FFB]

On 8/11/2022 at 3:32 AM, Skwerl said:

I would agree except the comic (pre-acetate) was a licensed Black Flag exclusive. So it's not a question of copyright infringement, but more a matter of them violating the terms of a licensing agreement by making an unapproved modification. Same as if a toy manufacturer that had a license to make and sell Batman figures started selling versions with a gun instead of the batarang or something. that's not copyright infringement (like it would be if it was just some random toy company with no such license). But it should and hopefully will land them in hot water as a pretty blatant and stupid license violation.

As a copyright expert, you should know that toys, in particular, are a really bad example to use for a copyright infringement analogue for a printed comic book.  Toys have their own huge can of worms when it comes to copyright protection.  

Also, you seem to think that a license agreement protects someone from being sued for infringement if they exceed the scope of the license.  That is indicative of a fundamental misunderstanding of what rights and protections a license agreement provides.  If a licensee exceeds the scope of a license agreement by using copyright protected property outside the scope of the license, they are infringing the copyright, pure and simple.  They may also be liable under the terms of the license agreement, which may provide for its own remedies, but they are also liable for infringement.  It's not one or the other.  

[Prince Namor]

On 8/11/2022 at 11:36 AM, GeeksAreMyPeeps said:

Not at all what I was suggesting. I meant the idea of creating an acetate overlay that creates a revised version of the underlying art. For example, I could see this being used in some way to obscure a character reveal.

Well it has been used before... the MARVELS series immediately comes to mind... though not as a variant thing...

[DrunkWooky]

On 8/11/2022 at 9:39 AM, FFB said:

but they are also liable for infringement.  It's not one or the other.  

This. Unless waived, contractual rights are in addition to all rights of the parties under statute and common law. 

[namisgr]

I want to thank the myriad of attorneys, lawyers, barristers, and copycats in this thread for reinforcing my decision made decades ago to stay away from becoming a lawyer.   

Seriously, the back and forth is interesting.  Carry on!  Anyone got anything more on the appearance of impropriety here that a customer might have paid CGC in advance for specific grades, rather than for third party grading?

Edited August 11, 2022 by namisgr

[Prince Namor]

On 8/11/2022 at 11:29 AM, Dr. Balls said:

I don't think fresh would be the word I would chose for the variant culture. To each their own in the comic world, but comics as a collectible are driven by people wanting to buy existing copies. Comics as a manufactured collectible are driven by people being manipulated into thinking what they are buying is unique, exclusive, etc.

It may look like we're splitting hairs here, but I think the entire variant culture is unethical, dangerous and shady - always has been and always will be (going back to the Wizard days). It's based on the idea that you can repackage a $5 book and sell it for $20 because you say it's worth that by reinforcing it with blabbering YouTube and Instagram "influencers" who get free books to talk about how "rare' it is, etc ad nauseam. The internet and Con hype and manipulation make the horsesh@t Wizard peddled back in the day look like schoolyard whispers.

I don't know what word is the right word when referring to a new way to rip people off.

I was explaining a variant to a guy once, who actually bought comics for 'reading', and as I explained it, he was looking extremely puzzled. He then said, "So it's the same comic, it just has a different cover?"

I chuckled and said, "Yep. That's about right."

He said, "That don't sound like a good deal at all."

People can make fun of the Midwest all they want (this was Indiana), but that is spot on logic there. 

[FFB]

On 8/11/2022 at 5:27 AM, jaybuck43 said:

@kavhow long until someone whips out their transcripts?

Doctrine of first sale. Marvel loses their ability to control the Books once they sell them. If I want to staple an acetate of myself laughing at miles holding the mask, legally I can. Marvel can sue, they’ll lose in court. However, I may be in violation of the contract I signed with marvel. Then it’s tort not ip law (call someone else, ip and anti-trust are my areas). This all comes down to a licensing agreement dispute. Not knowing what’s in the document I can’t comment on how that would work out.  

The First Sale doctrine merely allows you to resell the thing you bought without Marvel's approval.  Marvel only possesses exclusive rights as to the "first sale" of the product, meaning that once they choose who they sell it to, the purchaser can resell the item without Marvel's approval.  

You are confusing this with the derivative works protection that Marvel enjoys.  Even after the first sale of the original item, Marvel continues to possess the right to prevent others from taking their IP and making a derivative work from it without their approval, even if the protected item was legally purchased by the person making the derivative work.  

[Axelrod]

So, maybe this is way past the point of being relevant, but I was confused what, exactly Blag Flag's version of this comic was.  It's not the reprint.  And it's not the "regular" facsimile edition, but it is some kind of special "store exclusive" facsimile edition, that Black Flag was able to commission, which has slightly different artwork and has Black Flag's store logo on the back?  And this was produced by Marvel.

And any store can get their own "exclusive" variants as long as they are ordering at least 3000 copies?  Or is it maybe just certain stores/businesses that have a relationship with Marvel?

So, they had their own exclusive variant already, but, they didn't sell out of the original 3000 they ordered.  And so, someone had the idea to juice up the remaining stock (or at least 750 copies of it) with this acetone cover and make an "even-more-exclusive" exclusive out of it?  

And people went nuts over this?  

[FFB]

On 8/11/2022 at 7:48 AM, DrunkWooky said:

The difference is enforcement. 

By the letter of the law, every time an artist, regardless of how respected and prolific they may be, sells a drawing of a copyrighted character owned by Marvel, DC, hell even Valiant, and sells it without authorization, it is copyright infringement. 

The difference is enforcement. Because convention culture, getting sketches and autographs on your comics, and things of that nature are part of the comic industry's early DNA and are still a massive part of the hobby today, comic book publishers refrain from enforcing these rules. 

However, if they wanted to make an example of somebody, they could go out there, walk the convention floor and do so. They won't however, because it's bad PR, punishing your fans. 

If you're asking where the line is: there is a line to be crossed and that is the copyright holder's tolerance of behavior. This C2E2 variant is an egregious flouting of Marvel's copyright. It also sets a terrible precedent where shops can begin slapping nude bodies over Spider-Gwen, putting $ in Superman's mouth, and whatever other offensive nonsense they want. I would bet money those are the conversations being had by Marvel's attorneys this week.

To the argument that "the flag and U.S.A. graphics aren't owned by Marvel", that's true. However, they are being presented together with characters owned by Marvel and Marvel's trademarks. If you ever buy a variant and it has a "trade dress" and "virgin" option, "trade dress" is literally a term lifted straight out of the trademark statute and is a protected sub-category of trademark. So, yes Marvel does have the right to enforce how their trademarks are presented through acetate on the shelf. To accept that anybody can put public domain (copyright not owned by a private party) on any trade dress they wish is to accept the position that I could take these 750 issues and put piles of dog Sh!? on the flag, Marvel's logo, Miles' head, and Clayton Crain's name. No, Marvel would not accept that. Nor should they have to. 

To the argument that "Black Flag paid for these books so they own them", correct they do own the physical book. However, those ownership rights are separate and distinct from copyrights which they do not own. Owning a CD physically does not give you the right to rip the music off the CD and send it to your friends online. 

There is a fundamental misunderstanding on these boards about how the copyright, trademark, and contract law framework is operating and I think everybody should refrain from trying to opine on these things. I'm going to from this point out certainly. I'm an attorney and I would refrain from providing any sort of formal legal opinion to somebody without seeing the contract first and getting a lot more information. 

There are myriad things in the world happening everyday which are technical violations of copyright law. They are usually too small to enforce. Should these violations still exist in the law in today's world? Are they good policy? Those are separate questions. For the time-being this is the law of the land in effect on the day Black Flag pushed this tripe onto the market.

While there is a criminal portion of the copyright statute and the trademark statute, they are seldom used by law enforcement in the type of context we're in here. Enforcement is, for the most part, left up to the copyright and trademark holder. For Trademark, those who do not enforce the quality control of their trademark are risking being deemed to have abandoned their mark. So, there is significant incentive to enforce. This is why so many cease and desist letters are sent, because it's the cheapest form of enforcement you can perform. Because enforcement is left to private parties, it is inconsistent, but enforcement that goes to court is usually a big deal and brought to make an example and stamp out further behavior of the sort. To the arguments of fair use, parody, etc., etc., I've said it before and I'll say it again, those are affirmative defenses and questions of fact for a jury. That means, you need to go through every stage of litigation and finally get to trial before those defenses are considered and decided upon. That is more expensive than Black Flag can afford. They would settle with Marvel long before then and no settlement with Marvel would come without a covenant by Black Flag to discontinue this behavior. 

There are also contract rights at play here under Black Flag and Marvel's exclusive agreement. While we do not know the specific contents of that contract, we can guess that Marvel did not waive their rights to copyright or trademark enforcement and so all three things are in play right now. Claims for breach of contract, copyright infringement, and trademark violation are all on the table right now. 

[GeeksAreMyPeeps]

On 8/11/2022 at 11:41 AM, Prince Namor said:

Well it has been used before... the MARVELS series immediately comes to mind... though not as a variant thing...

IIRC, those didn't really alter the underlying art though.

The X-O Database used acetate overlays to show stages of the armor, but in the interior. What I was commenting on was something specific like this. Let's say there's a brand new Iron Man armor in the comics. And Marvel wants to do a facsimile of ToS39, so they print that, but with an acetate overlay showing the new armor on top of a repro of the original cover. Something like that.

[GeeksAreMyPeeps]

On 8/11/2022 at 11:39 AM, FFB said:

As a copyright expert, you should know that toys, in particular, are a really bad example to use for a copyright infringement analogue for a printed comic book.  Toys have their own huge can of worms when it comes to copyright protection.  

Also, you seem to think that a license agreement protects someone from being sued for infringement if they exceed the scope of the license.  That is indicative of a fundamental misunderstanding of what rights and protections a license agreement provides.  If a licensee exceeds the scope of a license agreement by using copyright protected property outside the scope of the license, they are infringing the copyright, pure and simple.  They may also be liable under the terms of the license agreement, which may provide for its own remedies, but they are also liable for infringement.  It's not one or the other.  

My favorite story of toy litigation involved Marvel's X-Men figure line, in the 90s I think. Dolls are/were taxed differently (higher) than toys that don't represent people, so Marvel's lawyers argued that the X-Men, being mutants, were not human, so they didn't qualify for the higher tax rate. Marvel's lawyers essentially took the position of a lot of the antagonists in the Claremont era.

Edited August 12, 2022 by GeeksAreMyPeeps

[skypinkblu]

On 8/11/2022 at 11:49 AM, FFB said:

The First Sale doctrine merely allows you to resell the thing you bought without Marvel's approval.  Marvel only possesses exclusive rights as to the "first sale" of the product, meaning that once they choose who they sell it to, the purchaser can resell the item without Marvel's approval.  

You are confusing this with the derivative works protection that Marvel enjoys.  Even after the first sale of the original item, Marvel continues to possess the right to prevent others from taking their IP and making a derivative work from it without their approval, even if the protected item was legally purchased by the person making the derivative work.  

I'm not really enjoying the topic of this newest drama, but I AM enjoying reading the legal arguments...nice to see some posters I have not seen for a while:)

[awakeintheashes]

On 8/11/2022 at 11:52 AM, Axelrod said:

So, they had their own exclusive variant already, but, they didn't sell out of the original 3000 they ordered.  And so, someone had the idea to juice up the remaining stock (or at least 750 copies of it) with this acetone cover and make an "even-more-exclusive" exclusive out of it?  

And people went nuts over this?  

Pretty much, yeah. And, CGC graded it with a blue label. 

[Mike's Rack]

On 8/11/2022 at 8:59 AM, GeeksAreMyPeeps said:

IIRC, those didn't really alter the underlying art though.

The X-O Database used acetate overlays to show stages of the armor, but in the interior. What I was commenting on was something specific like this. Let's say there's a brand new Iron Man armor in the comics. And Marvel wants to do a facsimile of ToS39, so they print that, but with an acetate overlay showing the new armor on top of a repro of the original cover. Something like that.

There have been a few examples of similar things in the past but nothing exactally on point that I can find.  Publishes (edit - retailers) have added covers and flair after printing like the Miracleman books (blue label) and Retailers have added covers like the J company covers (green label).  But here we have a retailer adding a cover purported to have been created by the original cover artist to a store exclusive that has presumably not gone into circulation.  

Edited August 11, 2022 by Mike's Rack
Correct inaccurate statement

[wardevil0]

On 8/11/2022 at 11:52 AM, Axelrod said:

So, maybe this is way past the point of being relevant, but I was confused what, exactly Blag Flag's version of this comic was.  It's not the reprint.  And it's not the "regular" facsimile edition, but it is some kind of special "store exclusive" facsimile edition, that Black Flag was able to commission, which has slightly different artwork and has Black Flag's store logo on the back?  And this was produced by Marvel.

And any store can get their own "exclusive" variants as long as they are ordering at least 3000 copies?  Or is it maybe just certain stores/businesses that have a relationship with Marvel?

So, they had their own exclusive variant already, but, they didn't sell out of the original 3000 they ordered.  And so, someone had the idea to juice up the remaining stock (or at least 750 copies of it) with this acetone cover and make an "even-more-exclusive" exclusive out of it?  

And people went nuts over this?  

Yes, anyone can get an exclusive of any Marvel issue assuming they are willing to order at least 3000 copies and abide by the terms of the licensing agreement, whatever they are precisely.  Safe to assume Marvel retains the right to veto any artwork they wouldn't endorse.

As far as people going nuts over it, they mostly went nuts over the ALLEGEDLY corrupt method Black Flag used to sell them ("influencers" cutting line to buy armloads), the fact that CGC graded these modified books in blue labels, and that CGC has given each of Black Flag's submissions exactly 1x 10, 3x 9.9s, and 6x 9.8s for each of their acetate variants. 

[fastballspecial]

On 8/10/2022 at 10:15 PM, Gsims718 said:

Apparently people are bidding them up and not paying so they can’t be sold.

That I expected

[FFB]

On 8/11/2022 at 9:04 AM, awakeintheashes said:

Pretty much, yeah. And, CGC graded it with a blue label. 

The last part is the part that bothers me and some others the most.  The copyright infringement part is getting more ink right now because we're debating the issues (it's fun), but the truly troubling aspect of this whole thing is the arrangement Black Flag had to get these books graded with not just blue labels, but with what seem to be an unlikely and inflated number of 9.9s and 10s, given that the original facsimile editions never had a single 9.9 or higher when submitted to CGC in far greater numbers.  

[fastballspecial]

This thread is so good I am reading it during my lunch at work to keep up.

[billsid]

Maybe our vast amounts of lawyers on here can explain to me the outcome of CGC's part in the obvious grading collusion 1x10.0 3x9.9 and 6x9.8???