As I was reading a bit of Twitter the other day a comic book related subject came up that I had contemplated before and it brought it to mind again. It has to do with pencilers, inkers, and original art. They way comics books have traditionally been made, especially Marvel and DC comics, is that one person draws the comic in pencil and then a second person draws over the pencils with ink. They’re generally known and a penciller and an inker.

A second thing that you should know is that the penciller is generally considered more important than the inker. The penciller makes a lot of the storytelling decisions, has to be able to draw well, has to be able to draw quickly, and generally make everything look pleasing. The inker deals with how the drawing is going to look as a finished piece. With ink he sets the lighting and mood and well as making sure that things will print properly. Two different inkers working over the same pencils will yield different results but both should be recognizable as the work of the same penciller.

In the business of commercial art publishers usually buy the rights to art but not the art itself. So if a publisher wanted to hire Norman Rockwell to paint a cover for them they get the reproduction rights to the art but not the physical painting itself. That is returned to the painter. For many years comic books were different. After the artist handed in his work to the publisher they wouldn’t give it back. They said it was theirs and kept it. It the 1960s artists started to fight for the return of their original art and by the late 1970s Marvel and DC started return the art to the artists.

The first problem the publishers has was who to return the art to. Both the penciller and the inker worked on it (we won’t mention the letterers because they got nothing returned to them). The penciller was considered to be more important but none of his actual pencils still existed. They’d all been inked over. Eventually the publishers decided to return half the pages to the penciller and half to the inker. Or two thirds to the penciller and one third to the inker. I’ve heard it both ways but the tweet I read mentioned the two thirds to one third split.

That’s the way it stayed for years but then technology changed things. Besides things being done digitally, in which case there is no physical artwork to give to anyone, digital has also made it possible to easily separate pencils from inks. I do it all the time with my own work. You scan in the pencils, e-mail them to the inker, and then the inker prints them out in non-photo blue line on a new piece of paper. The physical pencils and the physical inks are never even in the same room.

Marvel Comics used to have an art returns department (it was usually one person and an intern) whose job it was to make sure that artists got their original art back. They don’t anymore. They don’t even want the physical art sent in. Scans are all they need. This means the artists are on their own when it comes to original art issues these days.

John Byrne doesn’t tweet. He only posts on his own website But there is a person who goes by the Twitter name of “NotJohnByre” who reposts some of Byrnes stuff so the wider world can more easily keep track of Byrne and his work. It was there that I learned that Byrne had been working on a new X-Men project that he wants to get published. Byrne has pencilled some pages of it and he was thinking that he’d like to have them inked over blue lines rather than the original pages. None of that was unusual. The unusual part was that he said he wanted not only to keep his pencils but also have two thirds of the inks returned to him. So he would end up owning all the pencil pages plus two thirds of the inked pages while the inker would only end up with one third of the inked pages and no pencil pages.

That sounds unfair but Byrne’s argument was pretty straight forward. No matter if inked over the pencils or over blue line it was still his work and he deserved his fair share of it. If the inks were done right over the pencils he would get two thirds of the finished pages so why should things change? His work was as integral to the finished pages as it always was and so he deserved what he always got.

That’s not a bad argument but it overlooks one very important item. Things have changed. First off neither Byrne nor the hypothetical inker own the intellectual property they are creating. Marvel Comics owns the X-Men and all the X-Men Comics that they pay anyone to make. All the artists own is the physical manifestation of what it takes to make the comics. John Byrne owns the physical pencils that he draws but once he scans them in and sends them to Marvel his ownership of the intellectual concept of those pencils is gone.

Once Marvel receives Byrne’s scans of the pencils they can do what they want with them. Byrne’s ownership over the pencils has ended except for the direct physical manifestation of the pencils which he still has in his studio. Marvel can send the, now digital, pencils to an inker, they can send them to six inkers, they can forgo inks entirely and print directly from the pencils (which used to be tough to do but now is much easier), they can never publish them, they own them.

So let’s say Marvel sends Byrne’s pencils to an inker and he inks them. What is Byrne owed from that inker? Nothing. Why? Because things have changed. The days of pencils and inks having to be done on the same page are gone. When they had to be done on the same page there was a need to compromise. The penciller could get some of them in proportion to how important he was seen to be to the book and the inker could get some of them. Not anymore. The penciller can own the exact work he did and so can the inker. That seems very fair to me.

For John Byrne that doesn’t seem to be a good enough argument but for me it is. All the artist owns in the case of commercial art is the physical manifestation of that art that he makes with his own hands. He doesn’t own the conceptual rights that he sold. He has no say over them. So once Byrne hands in the scans and keeps his own pencils he owns nothing that is made form those pencil scans. The inker gets to keep his inks.