Jeff Trexler is best known to comics fans as a writer and commentator. The lawyer has been writing about comics for years for The Beat, The Comics Journal and Newsarama, explaining legal issues around many of the court cases that have captivated comics fans. The Yale Law School graduate took on a different role earlier this year when he became the interim director of the Comic Book Legal Defense Fund.
The actions of the former director have been well documented, and we did not discuss that in our recent conversation. Besides talking about Trexler’s background and his thoughts about concerns in the comics world that will be important in the coming years, he also makes the case for the continued importance of the CBLDF, mistakes that have been made in the past, and what else the group can and should do going forward.
To start, how did you come to comics?
It’s really my earliest memory. I cannot remember a time of my life that did not have comics connected to it in some way. When I was young was the time of the Batman TV show. That was my thing. When I was in elementary school I had a teacher who asked me about my particular way of looking at life, and I said that I saw words and pictures as really the same thing. What I explained to the teacher was that my earliest memory of reading was the word Batman appearing on the TV screen. They would flash the word on the screen as they sang “Batman” and I had this epiphany that the things that you saw on the screen were what was on my blocks – and it all came together as one. Words are just another kind of picture, and both words and pictures are about communication. It’s almost like a synesthetic point of view, that everything is connected in some way, whether sounds, texts, images.
I remember the Jerry Siegel and Joe Schuster case happening in the 1970s. The law and comics and an obsession with rights and justice for creators and even censorship, because I was fascinated by EC Comics. You want to talk about my teen years, those were my obsessions. These ideas framed my ideas about justice and legality and equality, and have really defined who I am.
How did you end up becoming the Interim Director of the CBLDF?
When they asked, “Would you like to do this?” there was some history. I had approached them and said, “I can help with this.” There are several reasons why I reached out to them beyond a sense of service and wanting to give back to a community that’s meant a lot to me over the years, but with my own particular training and experience. I went to law school because I was interested in how nonprofits respond to change, and I met a professor who founded nonprofit law as an academic field. That’s why I went to law school and why I went to Yale law school. That was the hub of nonprofit legal scholarship at the time. My background is in nonprofit legal reform and these tensions of identity and ethics. I’ve been teaching for decades and helping nonprofits and corporations with these issues for decades. Also – and this is not known because I’ve done this quietly, which is how it should be – I’ve done a lot of work helping people who have brought complaints of sexual harassment and trying to get organizations to be more responsive to their concerns and complaints.
When I saw what was happening with the CBLDF, it was an issue I was aware of, but my approach is a more contemporary approach, which is being more victim centered. When I saw the CBLDF was going to have a leadership change, and it was going to have a substantial effect on their connection with the comics community, I felt like I could help them. I had helped other organizations with this and I’ve helped people who have been harassed and I could bring to it a perspective about not just defending the organization at all costs, but helping to develop a new organization that is more responsive to the community and addresses legitimate concerns. The other thing I thought I could bring to it, which isn’t very common in my profession, is that I could come into this not wanting the permanent long term job. For an organization in the midst of crisis, they needed somebody who could come in and say, “This is what needs to be done, I’m not going to jockey to get a long-term position or curry favors or compromise.” I don’t want to be here longer than however long it takes to make changes and lay a strong foundation. I really just wanted to make the changes and move on.
You’re also coming in as a lawyer, as someone with this background, but you also know the comics community. Often people who take on these interim posts in times of change don’t necessarily have such a knowledge.
Yeah, and I’ve been very fortunate in that respect because I am, in internet parlance, I’ve been a lurker online. I’ve read the Comic Buyers Guide and fanzines and zines. In the ’80s my friends in the computer science department introduced me to this marvelous thing no one had heard of called the internet, and I spent way too much time in grad school reading comics and sci-fi Usenet forums.
When I started writing about the Siegel lawsuit online, it was really a way for me to give back. There were a lot of discussions about legal issues, but there was confusion about some of the technicalities. Like the differences between copyright and trademark, or what termination rights were. I started writing about it on my blog and then for Newsarama and The Comics Journal and The Beat. I started writing explainers about cases and statutes, and the response has been tremendous.
There have been conversations about the CBLDF and what their role should be. I would argue that it was created by people for whom the industry was defined by censorship and free speech battles – Frederic Wertham, Miller v. California, Hustler v. Falwell – and they created the CBLDF to be this narrow organization to deal with these issues. I am unsure the degree to which we need such an organization today because we live in such a different legal and social landscape.
Excellent question. It’s something I’ve thought about a lot. It was a different time. Wertham and the 1950s defined things for a generation but the fact is that things have changed culturally. In my writing I suggested that there were two big issues that the CBLDF had not addressed. One was that the censorship movement had changed. In fact it isn’t even conceived of as censorship anymore. That was from a different era and there were different understandings of the law. We’re moving from a culture seen in terms of censorship and prosecution to one of corporate social responsibility. When you make that shift, there’s some deep philosophical, historical, linguistic stuff going on. Simply framing things in terms of censorship and law is going to be seen as outmoded. You have to adapt to that new environment. That was a factor in what happened to the CBLDF. In addition to what was going on with harassment issues, there was a gradual sense of detachment from what the fund was doing. Fighting those battles didn’t resonate as they had in years past. Wertham has been dead for a long time. You have to adapt to a changing society or the organization is not going to be able to succeed.
Now does that mean that the CBLDF has no purpose? Absolutely not. When I look at the CBLDF one question you have to ask is, “Was it founded purely to deal with 1950s style censorship and government enforced obscenity laws? Or was something more fundamental going on?” I’ve taught at a business school and in business you have to understand what you are providing in terms of goods and services. The classic example is Xerox. Were they selling copiers? Or were they selling information and the ability to communicate information? When you define Xerox as a copier company, its lifespan is limited. When you define it as an information company, then its lifespan is infinite.
When I look at the CBLDF I saw the obscenity and censorship element as one particular context-dependent expression of a much deeper concern with rights and access. When you look at people in comics, people want to be able to express themselves, make a living off of their work, make sure that their work can find its audience, and that its audience isn’t being restricted in ways that are improper. When you look at it from that standpoint, the CBLDF’s work exists on a continuum of the concerns with Siegel and Schuster’s case about Superman, the concerns of Jack Kirby, the demand to return original art. One of the first times I encountered the CBLDF was on a tax case in California when I was a law clerk for the 9th Circuit Court of Appeals. There’s much more the CBLDF can do in terms of creators’ rights, retailers’ rights, fans’ rights than it has been doing. The charter speaks to constitutional rights pertaining to comics. When you think about constitutional rights pertaining to comics, the first amendment is part of it, but that’s not all of it. Contract rights are in the constitution. Copyright is in the constitution. Congress setting up rules for commerce is in the constitution. When I think of the CBLDF, I think of a comics community where it’s democratized to a tremendous degree. Everybody can be a creator, everyone can be a publisher, everyone can license merchandise. The CBLDF is in a position to help people do just that. Some people have said from the beginning that the CBLDF should take its money and give it to another charity like the Heroes Initiative and go away. I thought about that a lot, but with respect to the CBLDF and its emphasis on creators’ rights and retailers’ rights and publishers’ rights and rights to access to material and contract rights, the Heroes Initiative and charities like that exist to help creators who have fallen into poverty because of the deals that they had when they were making comics. The CBLDF is uniquely positioned to keep people in comics from meeting that fate. We can give people the tools so that this doesn’t happen to them. So that they don’t need that kind of charitable assistance. That’s something I’ve been trying to do since coming into the organization and has a lot to do with what I’m trying to do as far as planning for the future.
This year the CBLDF has had online seminars to help retailers and other projects which have been important, but as far as censorship, no one thinks the FBI is about to raid a comic book store. People are concerned about libraries and schools being targeted by parents groups, religious groups, right wing politicians, who are not going after Frank Miller comics or scantily clad superheroes, but LGBTQ comics and comics for kids, which don’t always seem to be on the radar.
We have a wonderful education team that’s been working on that. This is a deliberate call on my part so I’ll take whatever heat is deserved, but we’ve been working with schools and libraries since I came onboard and we haven’t been publicizing everything we do, in part because as a lawyer I’ve found that sometimes the most effective way you can help is to work with people to negotiate solutions privately. It doesn’t put the other side on the defensive in the same way and you haven’t gone to the press. That’s the way most lawyers on the level that I operate do things. They don’t send out press releases unless things have broken down in private and they have to fight in public, at which point it becomes a much more sophisticated media strategy. That’s what we’ve been doing, and we’re thinking about ways to let people know what we’re doing, but this is a core part of where we are.
It’s interesting you said that because we were talking about the shift towards social responsibility and one of the things about ethics is that people have a lot of different perspectives on what constitutes ethical behavior. I’m not talking about the ethics of harassment and conflict of interest, which are organizational ethics, but content ethics and sensitivity reading. We’re still in a new era of defining what that means. There’s a lot of concern in the progressive community where people don’t want to offend other progressives. How do you deal with that? How does a publisher deal with a spectrum of values? How do you adapt to an environment where something you could say in 2015 gets you canceled in 2020? Before this I was doing a lot of work in the fashion industry, which is one of the most progressive industries in the world, and at the same time, there are a number of issues one has to deal with. So thinking about that in comics is going to be crucial because we are a content media. We’re constantly expressing thoughts and opinions and depicting things, and in the struggle good vs evil, not everything depicted is going to be sunshine and rainbows. There are going to be things that people don’t like. How you deal with that environment today is an important question.
That’s a good point, and what gets talked about or emphasized is important. Jennifer de Guzman had a thread going through the sexualized imagery that the CBLDF has repeatedly used over the years. Some of which is disturbing. Again this gets back to this idea that half-naked women will be censored by the government unless you support the CBLDF, which is nonsense, but it creates an idea of not just what the CBLDF is, but of what comics are, which I think is detrimental.
That’s a very good point. I remember going to a comics shop in the 1980s or 1990s and thinking, “I can’t imagine going here with your spouse.” It sends a message to whoever is there that this is not a place that’s welcoming to women. I would go to some of these places because I wanted to get my comics, but I didn’t feel comfortable taking people there. It just didn’t send the right vibe.
I think there was a culture where a number of images that would have gone great, say, in 1960s underground comics or would have been worth fighting for in the 1950s, in the 1980s and 1990s and 2000s in that particular context and making it your symbol, comes across as really less a matter of fighting against censorship and more a matter of defending a particular interest and a particular kind of image. And propagating a particular kind of image is now, in contemporary parlance, problematic. The analogy that I’ve made is with the ACLU. You constantly hear when talking about free speech that the ACLU fought for the right of Nazis in Skokie to march. But the one thing they didn’t do – and that they had to convey – was that they weren’t supporting the Nazis. The ACLU was about access to expression and if you don’t allow access for one group, you may find that your group is also denied access as well. It was about the principle. They weren’t selling pinups of Eva Braun!
Organizations that ended up failing in this regard were Hustler and Playboy. When you read the early Hugh Hefner, it was about gay rights and women’s rights and it was very cutting edge. The problem was that Hefner had a vested interest in certain types of sexual freedom. He wasn’t arguing for sexual freedom in the abstract as a social good, he was arguing for sexual freedom so he could get more. This wasn’t really about women, it was about himself and men. He had a stake in this that went beyond a higher principle. Same thing with Larry Flynt. People saw the principle and they also saw the subtext of what these people were fighting for – and really questioned the integrity of the movement as a whole. Were they really fighting for free speech? Or were they fighting for the right to make women feel objectified and victimized and that they need to sleep with these guys in order to get ahead? It’s shifting one kind of oppression for another.
I appreciate anything that anybody has done to raise money for the CBLDF. It’s an incredible commitment for creators to give their time and their art and their inspiration. That is invaluable for any organization – especially and including the CBLDF. But there’s a shift in how these images are perceived and the valence that these images have. It was sending a message, whether intended or not, that the concern wasn’t so much with the right to speak as the right to have a particular kind of image that was enjoyed by a particular kind of constituency within comics – i.e. not women. It ended up confusing matters more than it was helping. I get those critiques. It’s a concern I share. Because I’ve worked so long in sexual harassment, I want to be sensitive to the fact that sexual harassment is something that goes across the gender continuum and however people identify because sexual harassment affects everyone, it’s simply that in my own experiences in the cases I’ve handled, much of it has been focused on women. This is something that’s been a concern of mine for a long time. I said that I’ve always read comics, but there have been times when I’ve pulled away because there were things in comics that got me upset and I would ask, “Can I keep doing this anymore?” You can’t let the part destroy the whole, but I get that concern 100% because it’s something I’ve been struggling with a lot.
A few years ago the CBLDF put out a comic explaining to students their rights when protesting, and that idea of using comics to reach a wide audience, to talk about legal issues is something I hope we’ll see more.
I definitely think that there should be more material like that. One of the things that the legal profession has done wrong since the 19th century is promote the cartel. The idea that the law is for lawyers and it’s not something that everybody should know or be able to explain. Law is a special thing and you need to have special training. No. Law is the ultimate democratic and public good. It’s something we are all responsible for knowing and there are things in law that help people achieve their goals. It should be a force for greater equality. What has happened is that the law has become a force for inequality and social stratification. If there’s anything we can do to give people access to legal tools, tools for self regulation, tools for managing your own business – whether it’s as a comics creator, someone selling merchandise, somebody in cosplay – that’s something I think the CBLDF should be there to help.
And also help when there are value conflicts. That’s when free speech comes in because people will have different perspectives on what should be said and when. The CBLDF isn’t in the position of being an arbiter. We have a strong tradition of saying everybody should have access to the marketplace and to the public arena, but at the same time, we can help people face the fact that there are a lot of perspectives about what freedom constitutes, what responsibility constitutes, and maybe we can help people deal with that situation in a way that is nuanced and recognizes the complexity of the situation without simply automatically characterizing people as good or bad. We need to say that even within the progressive community – and comics is a progressive community – that there are many perspectives that need to be balanced.
The law can be an effective balancing tool and cartoonists probably need lawyers more than they use them. They need them for contracts, licensing and a lot of small things which often people can’t afford or don’t think they can afford.
That’s part of the great injustice of the American legal system. I’m from Amish country. I grew up in a family of farmers. We lived across the road from what used to be an orphanage and was a halfway house for kids taken away from their parents who were mostly from Philadelphia. I had a feeling growing up of being away from the world I wanted to be in. I had this sense that there’s this culture where a lot of people who are talented can’t do what they want and don’t have access to money and legal assistance and other resources that could get them what they want. What I’ve tried to do since I went to law school was to do as much as I can to help equalize that. I went to Yale law school, which is a great law school. My classmates now head up law firms and are judges and run hedge funds. Going to Yale law school is a gateway to a certain stratum of society. One of the things you learn is that the best legal help is not available to the people who need it. The best legal help that you pay thousands of dollars an hour for millions in transactions. When you’re dealing with a public good, that’s fundamentally wrong.
If there’s one thing I hope we can do at the CBLDF, it’s make it so that everybody can have access to high quality, experienced, legal expertise. Even if they don’t have resources. I want every creator to feel like they understand their contract. And that there’s a way to refine a contract so that the creator or whoever is dealing with the contract will find acceptable. The law shouldn’t be a tool just available to the elite. That’s part of what I see us doing. That’s implicit in the anti-censorship work, the sales tax work and the intellectual property work the fund did, defending people from trademark claims – it’s about giving people tools so that they can express themselves and do what they want to do with comics, and make a living at it and not be kept from the marketplace. If we can help people learn the law, if we can give people access to lawyers or legal knowledge that will help level that playing field, we will have done what we’re here to do. I said this when I came onboard, I don’t see this as giving the CBLDF a new mission. I see this in terms of a reboot. We’ve just come through a crisis and we’re rebooting the universe. This is about getting back to our core DNA, seeing how the best elements matter. It’s not about changing who we are, but being truer to who we are, who we have always been, and expressing it in the contemporary culture in new and exciting ways.
You mentioned before we started that you had been thinking about what will come up in the new year and looking ahead, and I wondered if you could say a little about what’s on your mind.
One issue that we’ve talking about is the shift of censorship from law to self-regulation and learning to navigate that in a way that is reflective of the complexities of the current environment. One of the concerns I want to do deal with is where you’re advocating for a principle and it ends up hurting the people you’re trying to protect. A classic example of that which we weren’t involved in is the Bianca Xunise strip which was a strip going after people attacking Black Lives Matter and used parody and satire visual language – which a lot of people don’t understand – and was seen as anti-BLM. There are other examples I don’t want to get into it because we dealt with it privately, but this is something that’s happening more frequently and we can help creators and libraries and schools.
Another issue is independent contractors and copyright. That is going to be huge. There’s an interesting development in the United States in terms of labor. We used to have an employee-centric culture with unions dominating employee-employer relationships. With first outsourcing to the non-union South and the right to work movement and then outsourcing to other countries, that really limited the power of unions. We’ve now moved to more of a gig economy where people are independent contractors. The problem from a labor union perspective is that under federal labor law, only employees can organize. Contractors cannot organize. When contractors unionize they can be subject to anti-trust complaints. What unions are doing is trying to make it harder for someone to become a contractor and let more people have the right to form a union. They did this in California and other states where they streamed the test for becoming an employee. There’s a bill in congress that Joe Biden has endorsed which wants to make this standard nationwide. I know a number of people in comics who think this is a great idea but the problem is that if everybody in comics is an employee, what else happens?
This affects work for hire.
That means that all these creators – writers, artists, colorists, letterers, everyone – are making work made for hire. The way it works in copyright law is that that is the default of your employment. If you’re not an employee, it’s only work for hire if there’s a written agreement saying that. If we’re creating an environment where every creator is an employee, then we’re creating an environment where the default rule is work made for hire. I don’t think people have thought through all the complexities of the situation. I’m not saying it’s bad to organize. I’m not saying that at all. I’m not saying that there shouldn’t be a way to get around these rules. But it’s a classic example of trying to solve one problem creates another problem. We could have a situation in as little as a year or two, where the entire intellectual property landscape for comics has changed in a way that I think a number of comics aren’t going to be happy. They’re going to be able to unionize but it’s going to be harder for them to be hired and the patterns of hiring are going to change. And then once they get hired, they’re going to be subject to much more rigorous intellectual property constraints in terms of who owns what. I’m not trying say that this is good and that is bad. Law is a blunt instrument. We have to figure out a more nuanced way to deal with these issues.
Another thing that needs to be dealt with is that conventions are going to change. Hygiene is one. Businesses outside of comics have mask codes and ethics codes with respect to conventions. This ties into independent contractors as well. Comics conventions have become an environment where fans are going there to build their careers. I noticed this in fashion. One reason many people do cosplay is marketing themselves for costume design positions, makeup and creature design. There’s a lot of networking that goes on at conventions. People selling their minicomics and self-published comics and trying to break into the industry. That changes things because one of the things I fought for here in New York – successfully – was having civil rights protections apply to all independent contractors. Not just employees. I was vehement that it had to be done and it was done in New York City which became the model for New York State and has become a model for other states. Extending civil rights protections is one way to deal with some of these problems without re-categorizing everyone as employees.
There have been rules in businesses where if you have an employee who engages in certain activity at conventions with a fan, the company will say, “That person’s not an employee therefore they’re not protected.” Now at conventions someone seeking access to the industry so they could be hired as independent contractors will have their civil rights protected as well. You can’t depend on that differentiation between actions towards employees and actions towards non-employees. The whole ethos of a convention has changed. Comics had the #metoo movement years before the entertainment industry did, which is why for years you have signs up about dealing with harassment, cosplay is not consent, but it’s time to level up those protections and it’s time to level up a code of ethics. Particularly if you have a business, it’s time to level up protections. The legal consequences of it have grown and people need to understand that those are real. Particularly in New York and California and states following their lead. I hope we’re going to be able to explain that and model what should be done. We need to get past the idea that ethics only matter if you are directly trying to hire somebody to be an employee, and otherwise, anything goes. That culture should be dead. It might not be dead, but it should be dead, and I am going to help people become aware of that.