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The Fanboy Crusade

Why a San Francisco comic-shop owner is trying to sue the pants off of Spider-Man's owners -- to the tune of $18 million

By Mark Athitakis 

Almost as long as there have been comic books, there have been comic book fans playing a little game called Who Would Win? If at some point in your life you took comics seriously, you know how it works: Pick any two superheroes and speculate about the victor of the ensuing titanic matchup. Can the Hulk beat the Thing? Does Spider-Man's agility give him an edge over the razor-sharp claws of Wolverine? Could Wonder Woman kick the emerald ass of the Green Lantern? If so, how? And why are these people mad at each other in the first place?

The answers don't matter, of course; it's imagining the battle that's half the fun. The game comes to mind when you consider the case of Brian Hibbs. Since 1989, Hibbs has run a small but much-admired Western Addition comic shop, Comix Experience; as he notes with no small amount of pride, selling comics is the only thing he's done his entire professional life. You probably have an idea in your head about what a comic-shop owner looks like, and the 35-year-old Hibbs does look like that -- long hair, a beard, partial to a whatever's-on-the-floor wardrobe of T-shirts and jeans. But it's there the cliché stops. In person, Hibbs is affable, intelligent, funny, and deeply passionate about the business of selling comic books. So he's more than happy to talk about something he decided to do a few months back -- an act that annihilates the myth of the comic geek as a milquetoast fanboy.

"You have the conn, sir," Hibbs says to one of his clerks before heading into the store's dingy back room, a fortress of solitude constructed out of shipping boxes, filing cabinets, a stained couch, and cigarette ash. Here, lighting a smoke and speaking at length, he explains how he came to the decision to sue Marvel Comics for $18 million, taking on the biggest producer of superhero comic books -- and the bread-and-butter of the comic-shop owner.

The mild-mannered owner of a low-margin business vs. the corporate juggernaut. Who would win?

Comic books are a funny business. Superhero fans are fussy -- they have favorite characters, pet artists and writers, and fickle tastes. They also have a penchant for speculation, gobbling up multiple copies of a much-hyped issue in the hopes that it will increase in value over time (burned WorldCom stockholders might consider reinvesting in old issues of Daredevil). The upshot of this is that the burden is on a comic-shop owner like Hibbs to figure out the ever-shifting pulse of comic-shop patrons, who account for the vast majority of comic sales. That burden gets heavier with the sales policies of large companies like Marvel, which dictate that shop owners can't reorder issues, or -- in most cases -- return the ones that don't sell. So Hibbs has to be good at figuring out what his clients want, and when they're going to want it.

"It's unlike any other periodical business in the world," Hibbs says. "If a newsstand gets a hundred copies of Time and they sell one, they can send the other 99 back. If we order 100 copies of a comic book and sell one, we eat the other 99 copies."

Even if it's a restrictive policy, it's still fair play, and it works -- provided the comics show up when Marvel says they will. And that's the issue at the heart of the suit. When comics arrive late, sometimes months after they are scheduled, Hibbs says, fans tend to bolt. Marvel's policy states that comics that show up more than 30 days later than promised are returnable, but (according to Hibbs' official complaint) Marvel wasn't accepting returns on the late comics.

All of this would just be fanboy griping, except that about eight months ago Hibbs decided to do a little math. He calculated that his losses from Marvel comics he should've been able to return and get credit for, but wasn't able to, totaled about $2,000 over six months. That's not much, though for a low-margin business like Comix Experience, "that's several months of electricity bills. That's employee salaries for a month."

Still not a blockbuster lawsuit, though, and his attempts to plead his case with Marvel and its distributor led to a lot of unreturned phone calls and e-mails. But wait: Consider $2,000 of losses over six months, figure there are approximately 4,000 comic shops in the U.S. that have to play ball the same way ... that's $8 million. Goodbye small claims court, hello class action.

"That's not chump change," says Hibbs. "On the one hand [Marvel is] shipping everything late, and on the other hand they're saying, 'Order more up front, otherwise you won't be able to get any more.'

"I have questions [as to] whether that's calculated or not."

That question is where an additional claim for $10 million comes from. Arguing that Marvel "willingly and maliciously" did all this, Hibbs' complaint slaps a fraud charge on top of the claim of retailers' losses.

The class action suit was filed in New York Supreme Court on May 6, which just happened to follow the opening weekend of the massively successful Spider-Man film. "Amazing how that happened, isn't it?" laughs Nancy Ledy-Gurren, Hibbs' attorney. "Just luck." More seriously, she argues that Hibbs has a valid class action claim since all comic retailers do business with Marvel the same way. While past experiences, she says, lead her to believe that the case may simply be settled, the suit's main point is to force Marvel to do better by the comic-shop owners.

Marvel, through a spokesperson, declined to comment, citing its policy of not speaking about ongoing litigation. However, shortly after the complaint was filed, Marvel Editor in Chief Joe Quesada released a statement that, with more than a little condescension, griped about the timing of Hibbs' announcement. "Right after one of the comic industry's most glorious weekends ... Brian Hibbs decides to file his lawsuit! ... Way to rain on everybody's parade, buddy!"

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