I am not a lawyer, I do not even play one on the internet.
But yesterday, Bleeding Cool ran a piece by comic book writer Patrick Kindlon talking with a union organizer and researcher about why comic book creators have not organised a union.
Especially in an industry where standard page rates have not so much kept up with inflation but have fallen, as sales have also fallen. For writers, pencillers, inkers, colourists, letters, odds are you are getting paid less than you would have done ten, twenty years ago. Some of that is driven by technology, but not most of it.
But one of the biggest stumbling blocks is that in most places in the USA, organizing a union of freelancers for collective bargaining may fall under anti-trust laws, which are intended to combat price fixing. The famous Taft-Hartley Act of 1946 explicitly excluded “any individual having the status of an independent contractor” from unionizing to the section that already excluded domestic and agricultural workers from being able to exercise that right.
Indeed, many creators set themselves up as limited companies, and if they were to talk with each other about, say, setting minimum prices for work, that could be labelled collusion and be prosecuted by federal authorities.
Many people, including Neal Adams, Barry Windsor Smith, Dick Giordano, Frank Miller, Steve Gerber, Steven Grant and more looked into the possibility of unionizing in the seventies and eighties but to no avail, coming up against the law on the matter.
The Freelancers Union exists though does not participate in collective bargaining deliberations with employers. For the reasons, as set up above, it does help with healthcare, insurance and other provisions that an American freelancer may find it harder or more expensive to acquire.
There are existing Guilds that cover certain freelancers which were grandfathered into the legislation such as the Writers Guild Of America. However, they are restricted in expanding their coverage and remit to include comic book creators.
The only way it would work is if the employees were actual employees, such as the Tampa-based CrossGen. Or if the people covered were editors, most of whom are employed as staff with relatively low salaries – though even that sector is moving into freelance as well. One could make an argument that exclusive comic creators, who sign up to sole publishers, are being treated as de facto employees depending on the state in which they operate.
DC Comics is probably keeping an eye on a class-action lawsuit alleging that Uber drivers in California are employees under state law, especially as the California Supreme Court issued a ruling earlier this year that changed the test for independent contractor status in California, which Uber is contesting.
And some some municipalities have already gone ahead with granting independent contractors the right to unionize The Seattle City Council passed a bill allowing Uber and Lyft drivers to form a union, though that is being appealed by businesses in court.
There is certainly something in the air, but it would require legislation being passed.
That being said, many people who might be eligible to join such a union or guild if it were legal, may not be inclined to. Many creators prefer the individually negotiated deals they have managed to achieve for themselves. Psychologically the concept of American exceptionalism, manifest destiny, libertarianism and pure damned bloody-mindedness may do more to defeat such a collective gathering as any law would.