by Morgan Davis
Let's say you're a superstar comics artist and writer, best known for an iconic character you created on your own terms and which now sits at the center of a relative empire that includes spinoff series, movies, video games and heaps of merchandise.
You're checking Facebook when you notice fans talking about a t-shirt featuring your iconic character's trademark. But the thing is, it's not a t-shirt you approved of or knew about until this instant.
That's the situation Mike Mignola found himself in over the weekend of the 8th when he discovered the featured shirt on TeeFury.com utilized Hellboy's red right hand and the font Mignola and his collaborators have utilized on covers for the series and many of its spinoffs.
Mignola is an industry veteran and is familiar with and even tolerant of unauthorized uses of his work, but this was something different. "We see it at conventions, sold by fans [and it's] not a big deal," Mignola said over e-mail, "but here is a company producing and marketing to a broader audience." But how broad is that audience and what kind of money is that company making?
The controvesial design as it appeared on TeeFury
TeeFury has existed since late 2007 and is primarily known for its 24-hour t-shirt specials, where a design is selected by the site and sold for only $10 during that timeframe. The designs are submitted by artists who are paid a dollar per shirt sold and "retain full rights to their design," according to the site's submission guidelines. Those submission guidelines also show the top five earners at TeeFury, with the number one earner, "WinterArtwork" netting nearly $40,000 (the site doesn't indicate whether this number is their all-time earnings or yearly).
That means that a single artist has generated nearly $400,000 for TeeFury, and WinterArtwork's gallery serves as a guide for what sells at TeeFury: pop culture references, parodies, and geek iconography. It's clear that TeeFury knows what it's doing, with a stable of artists submitting content that geek culture loves and is happy to pay for, especially at the $10 base price. Yet many of the fans buying merchandise from TeeFury are unaware that the company's user generated content model has resulted in run-ins with creators like Mignola, who are unaware of how their creations are being utilized.
Last year, TeeFury ran into heavy criticism after Francesco Francavilla was alerted to a design that he and others felt ripped off a portrait he did in 2006 of H.P. Lovecraft. The TeeFury designer responsible even took to his blog to state "screw other people's opinion about whether you ripped an idea or not," before going on to say "all is fair in love, art and war."
That's an important quote to keep in mind, since Jimi Benedict, the designer in question, is also the Art Director of TeeFury and in that same blog post he argued that "to get butthurt about getting ripped is more about you inability to market and be successful with your own art than the one succeeding in marketing it [sic]," urging the reader to "get your out there and market."
The design that Francavilla felt ripped off his work
Benedict's statements are likely to rankle creators who hope to profit from their works, but in the case of TeeFury, his marketing edict has paid off. Some analytics organizations estimate that the site makes more than $10,000 a month in ad revenue and while TeeFury did not issue a response to any inquiries about their business for this article, the success of their top five artists nonetheless indicates that the organization is selling far more shirts than any comic convention booth could ever hope to.
With such apparent success and attention, it's natural to ask why the artists who feel they've been wronged by the company haven't taken them to court for damages.
For Mignola, the answer is easy, as he stated via Twitter that "they post the tee for 24 hours only so they keep falling under the radar." To elaborate, the company's 24 hour sale strategy makes them far too difficult of a target to pursue with a cease-and-desist order, the standard tactic businesses use to halt copyright infringement.
As Christine Mignola, who handles Mike Mignola's site and business, stated over e-mail "By the time you get a cease and desist to them, it's down." That TeeFury doesn't actually own any of the designs they sell complicates matters further, since they could feasibly argue they were unaware that the design infringed on any other design (though statements like those made by Benedict could likewise be used as an argument against their ignorance).
That would make the individual artists the defendants, but many of the designers, including the designer who created the Hellboy design, do not reside in the United States, which adds a further level of complication to taking them to court. While most countries recognize each other's copyrights and copyright laws, it's unlikely that a foreign citizen would be extradited over a copyright matter.
A featured t-shirt on Mike Mignola's official site
That leaves copyright holders like Mignola and Francavilla with few options for pursuing TeeFury or its artists, but if they were to take the organization to court, they would then have to prove that the designs are truly infringement and not a parody or merely similar. Christine Mignola felt that the parody angle isn't realistic in this case, arguing that "Hello Kitty dressed up as Hellboy is parody but using Hellboy's fist and font is not."
If a judge were to agree with her, it would then be a matter of proving that the art in the design shares five points of similarity with Hellboy concepts or could be mistaken for official Hellboy merchandise. At the time of publication, Christine Mignola confirmed that a lawyer had contacted TeeFury and that Dark Horse Comics – publisher of all things Hellboy – had also gotten involved, but she did not have details on what shape the case would take.
What is clear is Mignola got the attention of Dave Eberhardt, the artist responsible for the design, who goes under the name kgullholmen. Eberhardt had initially agreed to be interviewed for this feature before stating in an e-mail that his legal adviser had advised against answ
ering any questions. Eberhardt did, however, state that "the money I make from this barely justifies the time I spend on making those designs," adding that "I do this for the fun of it and to up my illustration and design skills and most, if not all of the money goes back into art supplies, ink, brushes, that kind of stuff."
Most of Eberhardt's designs are more easily classifiable as parodies or mash-ups, integrating seemingly disparate properties like, for instance, Lost and The A-Team to form an A-Team comprised of characters from the hit ABC show and his "I Want You for the Bureau" design is a bit of an anomaly in his gallery.
An aspiring comic artist himself, Eberhardt's "ultimate plan is to become the writer/illustrator of my own graphic novels some day," though he currently works "an extraordinarily boring day job." Considering TeeFury's business structure and the potential for Eberhardt to be solely responsible for any legal issues surrounding the design, it remains to be seen what kind of impact this may have on that goal.
Mike Mignola did make it clear over e-mail that even if Eberhardt had reached out to him beforehand about offering the design for official use and perhaps working out a licensing deal, Mignola would not have been interested because the design is "too silly."
Which is where the fans come in. Because while Mignola's stance is perfectly understandable, some fans feel differently, with a commenter on a ComicBookResources blog post that originally pointed readers to the design stating "one of the many reasons I like TeeFury is because we can get cool designs that the main companies aren't making, and it's only $10." Christine Mignola feels that the $22 price point utilized on Mike Mignola's site is "a great price for what you are getting," and Hellboy merchandise is also available through Dark Horse and Graphitti Designs. But for fans looking to save money and who might be unaware of the licensing issues surrounding TeeFury and others like it, it's easy to see the appeal.
Mike Mignola and other copyright holders are under no obligation to meet fan demand if they feel it interferes with their aesthetic, but perhaps there is the possibility for these creators to beat TeeFury at its own game, allowing fans to submit designs and then featuring the best for sale on their sites.