Just how much do you enjoy The Walking Dead (returning this Sunday at 9pm ET on AMC)? Enough to want to watch it twice as often as you do now? What if the second helping was an entirely separate Walking Dead, on a different network with a different cast, but also based on the plot and characters from the comic book of the same name? That unlikely scenario was seriously discussed earlier this year, thanks to a lawsuit between the two men responsible for the creation of the series — and the unusual rights afforded to anyone who is legally recognized as an author of a creative work in the United States.
The two men in question are writer Robert Kirkman and artist Tony Moore. Comic fans are already familiar with both names; in addition to their work together on the first six issues of The Walking Dead series from Image Comics, they’ve collaborated on two other projects (Brit, a take on the invulnerable superhero idea, and Battle Pope, a superhero parody that, yes, features a Pope literally on a mission from God to prevent the Rapture) and had success separately at Marvel Comics, working on characters including the X-Men, Deadpool and Spider-Man villain, Venom. And yet, The Walking Dead remains what they’re best known for; a zombie story in which the undead are neither metaphor nor monster, but the backdrop to the slow realization that the few humans that are left in this new world may be the most horrific of all characters. For Kirkman, in particular, The Walking Dead has changed his life; not only has it run for almost a decade by this point, bucking the trend of decreasing sales or irregular relaunches in order to grab customer attention, but it has brought him into the world of television thanks to the AMC series on which he is a writer and executive producer. And that is where the trouble began.
In February of this year, Tony Moore filed a lawsuit against Kirkman, accusing the latter of not only cheating Moore out of his rights to the series, but also stiffing him — only a mild pun intended — of the profits he had been promised in exchange for those rights. In 2005, according to the lawsuit, “Kirkman and his agents devised a scheme to fraudulently induce [Moore] to assign his copyright interests… to Kirkman’s alter-ego limited liability company” by declaring that “a large deal on the table” for a Walking Dead television series — not the AMC deal, it turns out, but an earlier offer from NBC that ended up going nowhere — could only go ahead if Kirkman controlled all of the media rights to the comic book.
In return for signing his rights over to Kirkman, Moore was apparently told that he would receive 60% of net proceeds from the comic for both Walking Dead and Brit, 20% of net proceeds from any future movie or television adaptations of Walking Dead and Brit and 50% of net proceeds from any potential movie or television adaptation of Battle Pope. Needless to say, despite Moore signing over his rights, that wasn’t exactly how things worked out. “Kirkman and Kirkman LLC not only procured the Agreement by deceit,” the lawsuit alleged, “but have also failed to perform the payment, reporting, accounting and other material contractual obligations they assumed in the Agreement.” Hence the lawsuit.
At first, Kirkman tried to brush the lawsuit off: His attorney called the case “totally frivolous,” and said that “Mr. Moore is owed no money at all,” but things quickly got uglier. A month after Moore filed his lawsuit, Kirkman countersued, claiming that he had overpaid Moore for his work on their six-issue collaboration on The Walking Dead, and he’d like some of that money back, thank you very much. Adding insult to injury, Kirkman also sued Moore for breach of contract by going public with the agreed terms in his February lawsuit. During the discovery process for the first lawsuit, however, Image Comics objected to a subpoena for information on its relationship with Kirkman, who is a partner in the business, including royalties and compensation he had received from the publisher. Moore and his attorneys had no right to that information, they said, because it had no relevance to the Walking Dead work that Moore had actually performed, and wasn’t this really about unpaid royalties, anyway…? As it turned out, the answer was “No, not really.”
Moore filed a second lawsuit against Kirkman in August. This time, he made it clear that he wanted more than just money — although he still wanted that, and the language in the lawsuit demonstrated his lack of patience in trying to get it: “Kirkman is a proud liar and fraudster who freely admits that he has no qualm about misrepresenting material facts in order to consummate business transactions,” the lawsuit reads, going on to describe the 2005 agreement as having been arrived at via “a series of false promises, false representations and material omissions.” Moore stated very clearly that he wanted co-ownership of The Walking Dead. “Moore seeks a declaratory judgment by way of this action that he is a joint author of The Walking Dead, Battle Pope, Brit [in addition to two additional unpublished collaborations],” the lawsuit explained, and, as joint author, Moore would “hold… an undivided ownership interest in the entire works for each respective title, including all contributions contained therein.”
Here’s where things get weird. You might think that Moore having an ownership interest in The Walking Dead is still just a royalties thing, and a way of making sure that his piece of the pie is larger… but that’s not all. American copyright law states that “the author is also the owner of copyright unless there is a written agreement by which the author assigns the copyright to another person or entity, such as a publisher,” but in the case where there is more than one author, things get slightly more complicated. With more than one author, each co-author has an independent right to exploit the work — either in direct use or licensing it out to third parties — provided that they provide accounting and any royalties due for any and all profits from that license or use. Which is to say, if Tony Moore was granted declaratory judgment that he was, in fact, the co-author of The Walking Dead, then he could, entirely legally, go to another television network and say “Do you want your own Walking Dead show?” That wasn’t just a hypothetical, either; at the time the second lawsuit was filed, Moore’s attorney told the Hollywood Reporter that it “is definitely a possibility that [Moore] would exploit the property.”
This wouldn’t be the first time that pop culture has had competing versions of the same story in production — remember the dueling Snow White movies from earlier this year? — but it’s certainly not common for a specific story not in the public domain to compete against a parallel, alternate version of itself in the marketplace. That said, this wasn’t an entirely unheard-of idea, either; if Warner Bros’ legal team can’t somehow prevent the upcoming copyright reversion of certain Superman material to the heirs of co-creator Jerry Siegel, then Superman may find himself being licensed out to a publisher other than his traditional home of DC Comics within the next few years. Great Rao!, as the Man of Steel himself would say.
The question remains, though: Is Tony Moore the co-author of The Walking Dead? There are cases to be made for both sides. Certainly, Moore’s art on the original six issue is primarily responsible for the visual atmosphere and, to an extent, pacing that has made the series the success that it is. (Though without access to Kirkman’s script for those issues, we have no idea just how much of that pacing was very deliberately dictated by the writer beforehand.) And you could definitely argue that it was Moore’s artwork as much as Kirkman’s writing that made those original six issues what they were, and led to the series’ later success both in the comics industry and on television. After all, “zombies take over and humanity has to deal with it” isn’t the most original of ideas, and any attempt to argue otherwise might lead to George A. Romero having a thing or two to say on the subject. Yet Moore was working to a script from Kirkman, and the credits to the first issue of the comic from 2003 clearly name Kirkman as the sole creator of the concept. And, when we’re talking about the massive success of the franchise, Moore left the Walking Dead comic after just six issues (due to a desire to work on other projects, apparently), allowing Charlie Adlard to take over and draw the next 96-and-counting issues. Does Moore deserve as much credit as Adlard for the success of the series?
Certainly, the rise of The Walking Dead from cult independent comic to cultural phenomenon — the comic’s 100th issue this July was not only the best-selling comic of 2012, but also the highest-selling independent comic book of the 21st century — happened during Adlard’s tenure. Additionally two of the series’ most memorable characters, Michonne and the Governor, both of whom make their debuts in the AMC show this season, appeared in the comic books long after Moore has ceased to draw the stories. The television series has firmly moved into territory covered by Kirkman and Adlard by this point, both metaphorically and literally: The prison that will serve as home for the characters this season comes from a period some distance from Moore’s departure from the comic book, and showrunner Glen Mazzara is teasing “major character deaths” this year that may or may not mirror those seen in the comic book incarnation of the prison storyline. (“We’re not going to shy away from any dark material, but I will say that fans will be surprised at the dark material that we do show,” he told the Huffington Post. “What we actually take from the comic book and what original dark material we have coming up will really surprise the audience.”)
Luckily no one has to decide whether or not Moore deserves equal ownership of Walking Dead anytime soon. Just a few weeks ago, the two jointly announced that they’d come to some agreement surrounding all of their problems, with a statement that said that they had “reached an amicable agreement in their respective lawsuits and all parties have settled the entire matter to everyone’s mutual satisfaction.” Those of us who like gawking at the results of such affairs were rebuffed with a statement saying that “neither side will be discussing any details but will instead happily and productively spend their time focused on their own work and move on in their lives.” But… just in case, maybe it’s worth looking to see if the season premiere this Sunday has a new title card that describes the series as co-created by Robert Kirkman and Tony Moore. It’s not a second helping of Walking Dead, I know, but it might be much better for everyone in the long run.