PDA

View Full Version : Comics Legalese


UrbanUrchin
07-27-2016, 12:38 PM
Hi everybody,

I'm racking my brain trying to come up with fair and equitable contracts for the artists I would be hiring. It's very much a prominent subject these days, with percentages and points and the subject of backend profits being argued over and high profile creators fighting for their rights when licensing is involved.

I guess my question to the forum is about how you're handling contracts and if there are legal contract templates that anyone is using and under which situations they are using them?

To artists I ask, what are you looking for? What's fair? What do you consider to be work-for-hire and when would you accept such work? Do you immediately consider yourself a creative partner when approached? Have you been burned by not signing something (or by signing something, for that matter)?

To producers, how much stake are you wiling to share in a property? What factors do you consider during negotiations? If you've had success, what kind of paperwork is coming to the fore now that you have to divvy up shares? Is it complicated?

To the community here as a whole, can you direct me to some modern resources that would shed some light on all these subjects? I know it's a loaded question, but I think we could all benefit from some insight.

Thanks everyone.

Ferretti
07-27-2016, 02:52 PM
Oh boyo. I typed up my first contract last week and although excruciating, it did make me feel a little safer in the back of my mind. The two resources I used were:

1: Bendis' book on writing comics. There's a neat little chapter towards the back of the book where his wife lists all the things your contract should include. It's also filled with some really great advice from artists and editors. Definitely worth picking up.

2: This template: http://www.hollywoodcomics.com/collab.html
I didn follow it verbatim but it definitely helped me make it at least seem lawyer-y.

Good luck!

UrbanUrchin
07-27-2016, 03:29 PM
Thanks for sharing, Ferretti!

Bendis' book is "Words for Pictures: The Art and Business of Writing Comics and Graphic Novels"? I just ordered Lee Nordling's Comics Creator Prep (from the other thread) and am hoping that answers some of my questions.

Can I ask about your first contract? Are you collaborating with someone and not paying them an upfront page rate?

And asking everyone in general, should artists that accept a page rate get 50%? Or maybe it's 50% after the producer recoups their page rate costs?

maverick
07-27-2016, 04:14 PM
There's a recent thread where I proposed to pay the artist a page rate, and consider that an "advance on royalties", i.e., artist would not see any payment from sales of the book until it "earned back" what they were paid up front. To me, it seems so obvious, this is the fairest deal for all involved, but folks here mostly seemed lukewarm to the idea.

UrbanUrchin
07-27-2016, 04:48 PM
To me, the idea of getting paid an upfront page rate AND points is like having a cake and eating it too, but of course it depends on the situation and how much design work is brought to the table prior to the artwork being commissioned. That said, if an artist contributes heavily to the design work and isn't compensated by the producer, it's a real dick move.

I guess it would be prudent for both sides to be constantly negotiating i.e. if the writer brings wholly completed design work for issue #1 to an artist for sequentials, then for issue #2 needs a villain designed by the artist, it should be negotiated as to how much ownership the artist has in the villain, but not the designs that were in #1? Is this typical? Is this overthinking and overcomplicating things?

pandayboss
07-27-2016, 10:53 PM
I think if it's work for hire, the contract is different and mostly the owner/creator has the legal ownership/intellectual property. If it's a collaboration with 50/50 share, then the ownership would be for the partners regardless if the writer created the #1 villain and the artist the #2 villain.

It's better to read more on the intellectual property to get more idea how you do your contract/agreement.

Steven Forbes
07-27-2016, 11:56 PM
:the pessimist enters and takes a seat. looks around the room. sips from a cup of tea that suddenly appears in his hand:

For the most part, contracts between individuals aren't worth the time or effort. Most of the time, the book isn't going to sell more than 100 copies--and that's provided you go to a convention. Most of the time, the book isn't going to be made at all.

And that's why contracts between individuals generally are a waste of time. The idea isn't going much further than concept sketches and maybe a few pages made.

One of the parties breaches the contract. Is the other party going to sue? Are you going to spend more money to attempt to get something from the other party? How are you going to collect, especially if you're from two different countries?

Contracts are really very simple. It is a document that states what each person is entitled to, for both the good times and the bad times. It doesn't need to be formal at all. Have a conversation with whomever detailing what each party expects, write it all out in an email and send it to the other party. Have them respond with a simple "I agree" or something. Know what you've just done? You've just written a contract. You keep that email.

You don't need to worry about formal contracts until your idea gets real traction: Hollywood interest. And while anything is possible, it is improbable that your idea will garner that interest.

:the pessimist takes a final sip of tea, then the cup disappears. he looks around the room, brushes an invisible spec of dust from the front of his shirt, and then exits the room without a backward glance:

B-McKinley
07-28-2016, 03:43 PM
The Pocket Lawyer for Comic Book Creators: A Legal Toolkit for Comic Book Artists and Writers has an appendix on "Contract Anatomy for Comic Book Creators." Other books with sample contract I've encountered are usually targeted at the self-publisher, i.e. the title is some variation on How to Self-Publish Comics.

Lee Nordling
07-28-2016, 10:19 PM
Hi, UrbanUrchin.

First, thanks for picking up/ordering my book, and there IS a section that philosophically addresses contracts, wfh, and co-ownerships.

It's a REALLY broad topic, so for me, there is no right way or wrong way--I've done wfh and been in situations where I wouldn't do wfh--because there are a lot of moving parts to the discussion, much of which has been discussed here, and the REAL trick (meaning it's harder than you think it is) is knowing what you need, knowing what you want, and being able to find you pathway in and around each of them.

Re. needing a contract when working with another creator, that's a great question. From what I read, the artist on the early issues of "The Walking Dead" insisted on it, but the contract only specified his participation on the issues he worked on, and there's been a fair amount of comics press on this topic.

Re. an anthology that was initiated here (and I wrote about this in the book), nobody discussed a deal, and when a publisher became interested, after much time, effort, and expense was spent, I wasn't at all happy with the deal. I let my artist partner decide whether we'd accept it, and he said, "yes," so we took a modified version of it. I don't believe that's the deal that would've been offered at the beginning of the anthology, but since we didn't discuss or agree to it, the principles were completely in their rights to say, "Here's the deal we're offering." I regret not pushing for a clarification of the deal at the beginning, but I made an assumption, and my assumption was wrong.

I think creators should have SOME clear agreement in hand, whether it's written or verbal, and if they don't already know each other, I think written is better.

I certainly signed deals for the projects I worked on with creators for my company The Pack (a deal which is also noted in the book, with the philosophy behind it).

But when I work with friends now, I spell out the deal, and we agree to it, then I work to make sure it's reflected in the contract with the publisher.

The problem with this approach can be seen in the movie "Bad and the Beautiful," a great early Kirk Douglas film about how a movie mogul got his start, and the friends he left in his wake. The sequence in question is a film script he co-authored with a pal, a young director, but when Douglas set up the deal at a studio, the studio wanted a more experienced director...and the pal wasn't in the room when Douglas cut him out of the deal.

Here's my best quick definition of a contract: it's what you need when/if things go sour.

I stand by that, even when I only start with a handshake.

ayalpinkus
07-29-2016, 05:08 AM
For the most part, contracts between individuals aren't worth the time or effort. Most of the time, the book isn't going to sell more than 100 copies--and that's provided you go to a convention. Most of the time, the book isn't going to be made at all.



Which is why "percentage of back end" is an euphemism. But that's another discussion.

Lee Nordling's new book does indeed have a great section on how to work out a deal with a potential collaborator. Both parties should look at their own "wants" and "needs" and see if they can align.

You should in fact treat every customer, or coworker, or boss, or employee, as a collaborator in that sense; interrogate them, find out what their wants and needs are so you can see if you can align yours with theirs, so you can help each other.

Wants and needs will be all over the place. People may just want to have fun with a collaboration, or they may want to work with someone specific, or they may do it for practice, or their goal may be to create a submission to send to a publisher, or they may have a personal story to tell, or ...

So I don't think you can create a standard contract that will suit everyone.

Coming back to the quote above, for me it would be okay if no books were sold. I'm just making comics as a hobby. That is my "want". My "needs" are for me to be able to publish my work any way I want without ever having to ask anyone for permission, and to make sure I never waste time. Time is a scarce resource for me.

So I would definitely need a contract that covered my "needs", even if no books were sold.

I think you should always have a contract in place beforehand, and you should have a lawyer check it for you.

:looks at the spot where the pessimist stood but he's already left the room:

NatMatt
07-29-2016, 10:05 PM
As an artist who's just getting into the business aspect of comics, I would say that back-end pay is basically like saying "I'm not going to pay you for all of the hard work you've done". Let me elaborate, I drew a book for an anthology a few years ago and the intent was that I drew six pages and would receive my percentage of 45% (the writer getting 45% as well and the letterer receiving 10%) when the book was to be released. Thus, I drew the pages and waited patiently for almost a year before the book was finally released. The book has sold roughly 18 copies as of today and I haven't been paid a dime. After I completed this book, I worked with another writer who wanted to pay me through back-end as well. Being ignorant and hungry for more work I said yes and drew a total of 21 pages within a span of a month. Afterwards, the writer decided to cancel the book leaving me with nothing but 21 pages of hard work and wasted time. But it's okay, he said I could use them to get more work. After I told him to go f*ck himself, I just said screw it and decided to write and illustrate my own book (which recently got accepted by Comixology) and not deal with writers who only pay through back-end. And guess what I learned from this experience? If your going to go through with a book and hire an artist, PLEASE make sure you're willing to pay them something. It may not seem like a big deal to you but drawing a 21 paged book is both time consuming and labor intensive. I also hired a cover artist and a colorist for my book, who both received immediate payment after they completed they're work. It wasn't much but it showed that I valued their hard work and wanted to give them something for it. I know this post wasn't on back-end pay but I just thought I'd give my two-cents on why writers shouldn't use it when hiring artists.

Scribbly
07-29-2016, 11:39 PM
The only problem with the back end pay is the sales should be very, very huge for make profit of the book.
If we can print and sell more than 10 thousand copies and sell all of them at once, then we may have some margin of profit to share amongst the creative team. Lesser than that, is mathematically impossible to have profit for sharing. Anyone can grab a calculator and see for himself how this work.
All these tinny sales through comixology and other online media are only working as exposure, promotion and advertising for the members of the creative team.

Lee Nordling
07-30-2016, 12:55 AM
Re. the back end/royalties mentioned here, I'm not a big fan of generalities, though there's a good reason to be cautious of royalties, especially if it's the lion's share of compensation for the work.

Forget any numbers anybody just wrote about here. (Sorry, guys, but offering blanket/broad-strokes numbers doesn't help people figure out what's best for them.)

But the tricky part to this is for a creator to make a REALISTIC assessment of how many copies are likely to sell, then figure out if the pay (advance, page rate, and or royalties) is worth it.

Yes, most indie comics don't earn back the costs of producing them.

And yes, most "mainstream" books don't earn back the page rates and/or advances so that royalties can kick in.

But the trick to figuring out what is and isn't worth it as a deal is having enough savvy about prospective sales for whichever publisher you're considering to know what is and isn't worth it as a deal.

And yep, sometimes we guess wrong.

But I think it's better to do the math than to make broad-strokes decisions based on criteria that MAY NOT be relevant to your circumstances.

I've taken all-royalty deals, advance with royalty deals (where I never expected to see a cent of royalties, but where the advance made the work and publishing worth doing), and wfh with no royalty deals.

The only deals I REALLY regret are the ones where I felt lied to or pressed into a no-win decision.

Just my two cents.

Stewart Vernon
07-30-2016, 02:34 AM
There are no absolutes. It's true that a lot of comics don't get off the ground, or even if they do, don't sell very many copies. This is true for the big companies too! So, getting money up front is the most reliable way to get paid. You get paid whether the book succeeds or not.

BUT... how many people then complain about the big companies making money on product that "the artist" made hot? They blame the publisher for not cutting them in after-the-fact on royalties, but they wanted front-end money to pay their bills... then when the book goes over big, they have buyer's remorse and wish they had a back-end deal instead!

IF you go for the back-end deal... you might never get paid a dime. But if you and up on a hot-from-nowhere property (say like Walking Dead) that also goes into other media and merchandising... then you stand to make a bundle.

That's why there are no easy answers.

It's also why, as someone else suggested, the most fair contract is to offer you back-end royalties and partial ownership BUT pay you an advance up front for your work that counts against those royalties... SO, you get paid per page now albeit likely a smaller amount maybe, and then the book has to sell enough to cover that advance.

The world is filled with people who took a back-end deal and made nothing... It's also filled with people who took a page-rate up front and then complain because they get no royalties when the book hits the big time.

It's a choice. You can choose either way. IF you need money now, then you need some gigs that pay now... but if you have confidence in your work, the project, and the people running it, you might consider deferred back-end payments.

NatMatt
07-30-2016, 03:28 AM
There are no absolutes. It's true that a lot of comics don't get off the ground, or even if they do, don't sell very many copies. This is true for the big companies too! So, getting money up front is the most reliable way to get paid. You get paid whether the book succeeds or not.

BUT... how many people then complain about the big companies making money on product that "the artist" made hot? They blame the publisher for not cutting them in after-the-fact on royalties, but they wanted front-end money to pay their bills... then when the book goes over big, they have buyer's remorse and wish they had a back-end deal instead!

IF you go for the back-end deal... you might never get paid a dime. But if you and up on a hot-from-nowhere property (say like Walking Dead) that also goes into other media and merchandising... then you stand to make a bundle.

That's why there are no easy answers.

It's also why, as someone else suggested, the most fair contract is to offer you back-end royalties and partial ownership BUT pay you an advance up front for your work that counts against those royalties... SO, you get paid per page now albeit likely a smaller amount maybe, and then the book has to sell enough to cover that advance.

The world is filled with people who took a back-end deal and made nothing... It's also filled with people who took a page-rate up front and then complain because they get no royalties when the book hits the big time.

It's a choice. You can choose either way. IF you need money now, then you need some gigs that pay now... but if you have confidence in your work, the project, and the people running it, you might consider deferred back-end payments.

Perfect response to this argument. Honestly, you'll usually never know when something will take off so it's best to not take the chance and just ask to be paid upfront. I've worked on some books that I know are great stories but I'm not sure if they would sell. Success is usually up to pure luck sometimes. A great idea will only strive under the right business moves as well as the right execution. The Walking Dead was a moment of perfect timing. I highly doubt Robert Kirkman and Tony Moore knew it would take off the way it did and if Tony knew he probably would've stuck around longer. I thought of this when I submitted my book to Comixology. I know it's nothing special and I don't see it taking off into a tv-series or blockbuster movie anytime soon. Because of this, I made sure to keep those who I worked with at a minimum of just a cover artist and a colorist to color the cover (with myself writing, illustrating, lettering and editing the book) and made sure they were paid upfront for their contributions. It's a risky game to play but most of the time you'll never know when you've struck gold. That's why I think you said it best when you mentioned contacts should detail a percentage of the rights in the event that the book takes off.

ayalpinkus
07-30-2016, 03:58 PM
Guys! (And girls!) I said "percentage of back-end" was another discussion! Heh!

Consider this:

1) if a publisher *really* believes something will be a runaway success, they will not give you a percentage of back-end.

2) If they don't believe something will be a runaway success, it can never be one, because you can only reach the stars if you try to reach for it.

So it's a catch-22: if the publisher offers you a percentage of back-end, you don't want it. If they deny you a percentage of back-end, it may be in your interest to get a percentage of back-end.

I have seen it at a successful tech company (tripling revenue every year). Suppliers demanded percentage of back-end, and they weren't going to get it. The tech company played suppliers against each other and negotiated a fixed up-front price.

Anyway, weren't we discussing contracts?

To the pessimist, if he still read this, I apologize. I realized after I posted that you must have meant it tongue-in-cheek :-) "You don't need to worry about formal contracts until your idea gets real traction: Hollywood interest." Haha! That would be the right time to start negotiations indeed ;-)

Scribbly
07-30-2016, 10:41 PM
The thing is, Hollywood has not interest on producing comics titles unless these have previous record sales in comics format.
How a printed /digital comic can reach good sales? By attracting the comic audience.
Who is the comic audience? You, me, and anyone interested on reading comics as way of entertainment.
A very vast audience of million consumers worldwide that are having similar perception and expectations regarding each comic book they may purchase. Good artwork, original story, compelling characters. These are the basics for making any comics book work successfully. Regardless if the book sells 18 copies or 18 thousand copies. The difference is, by selling 18 thousand copies, the same book can have "back end profits". So, the media and format on which the comics book is exposed is very important regarding future sales and expectations of profits.
Obviously, for selling 18 thousand copies we must have, at least, 18 thousand books printed and distributed by mainstream media.

And by selling 180 thousand copies to a million, the same book would become a comic's Icon, interesting on the eyes of Hollywood producers.
Because this mean, if 180 thousand people (extremely picky comics fans ) are interested on buying a single copy of your book for read it, this book, whichever its content is, may be a good material to be produced on film format. Investing million dollars on get the pertinent movie featured.
So, back to the beginning, to start with a simple contract when working comics "for somebody else," is not bad idea. Just to prevent what luck could bring ahead to everyone.

Lee Nordling
07-31-2016, 12:25 AM
I have to take exception with something Scribbly wrote (because of my background in the film and television industry).

But first to agree: yep, something that sells a lot of copies of a book or a comic is going to get consideration from Hollywood, based on a pre-sold audience.

That said, there are a LOT of reasons Hollywood is attracted to comics properties (and books, and plays), and that's because of a perceived potential of the material.

There's a LOT more to this--and yes, there are two chapters on this topic in my book "Comics Creator Prep" that relate specifically to this topic, and (for those more interested in Hollywood than the larger book), my publisher will be releasing another ebook "Understanding Hollywood" at a reduced price.

Nope, I'm not here to tout the books (exclusively), but to shut down the idea that sales are the only thing the film and television industries care about.

The material DOES matter.

Now, getting them to pay ATTENTION to the material is entirely a different matter.

Stewart Vernon
07-31-2016, 01:41 AM
And on the Hollywood front, something I've always pointed out to people...

Even back in the heyday of modern comics, the "hot" titles were only selling maybe 250,000 copies per month. Now you're lucky if the "hot" title goes over 100,000.

Let's say you have something super hot that sells a million copies.

IF that million copies even goes to unique readers (probably not the case, as sales go up the amount of multiple-copy purchases usually goes up too)... that would be nowhere nearly enough people to sustain a motion picture.

Only a million people go see a movie? Hollywood wouldn't start the project. It's dead in the water.

Hollywood is about the ideas. Sure, a better seller might catch their attention sooner... but the idea is the thing.

Scribbly
07-31-2016, 01:57 AM
Sorry, I don't see were I am saying that material doesn't matter.
In a comics the MATERIAL is good artwork, original story (Aka: the idea), compelling characters.
What I said:
" if 180 thousand people (extremely picky comics fans ) are interested on buying a single copy of your book for read it, this book, whichever its content is, may be a good material to be produced on film format."

Whichever the content is: the cocktail of ingredients the story may have regarding the genre the story is working.The way on what content is managed is what ultimately will attract the comics reader on buying a book that could become a success on sales* and therefore may wake up the interest of Hollywood producers.
*) Success on sales: when thousand and million individual comics fans are each buying a copy of the same book.
We can see the same phenomena when a prose book is made onto film.
Prose books that don't sell well don't get Hollywood producers attention either.
Good MATERIAL is what makes the sale.

ayalpinkus
07-31-2016, 05:19 AM
Yeah, but in order to reach big sales, you have to throw a lot of money at it at first.

You have to have the best writers, artists, editors, cover designers, book designers, P.R. bureaus and such, and you have to pay them. And you have to pay for the print run, distribution, legal costs, and probably many other costs I am forgetting now.

If a publisher can only offer a percentage of back-end, that means the publisher likely doesn't have the money needed to make the property a financial success, and the property whithers and dies in obscurity.

Talking in film-alese: if the next Harry Potter film is made, for, say, 100 million dollars, you really do want, but won't get, a percentage of back-end. However, that low-end indy film they are shooting around the block, where the actors get paid in sandwiches, there you get offered, but you don't want, a percentage of back-end.

(Well, I understood unionized Hollywood screenwriters do get a percentage of back-end, but, you know, a union negotiated that for them. You probably don't have that clout).

Aaaanyway.... weren't we discussing contracts? :-)

Scribbly
07-31-2016, 09:12 AM
Yeah, but in order to reach big sales, you have to throw a lot of money at it at first.

You have to have the best writers, artists, editors, cover designers, book designers, P.R. bureaus and such, and you have to pay them. And you have to pay for the print run, distribution, legal costs, and probably many other costs I am forgetting now.

If a publisher can only offer a percentage of back-end, that means the publisher likely doesn't have the money needed to make the property a financial success, and the property whithers and dies in obscurity.

Talking in film-alese: if the next Harry Potter film is made, for, say, 100 million dollars, you really do want, but won't get, a percentage of back-end. However, that low-end indy film they are shooting around the block, where the actors get paid in sandwiches, there you get offered, but you don't want, a percentage of back-end.

(Well, I understood unionized Hollywood screenwriters do get a percentage of back-end, but, you know, a union negotiated that for them. You probably don't have that clout).

Aaaanyway.... weren't we discussing contracts? :-)

If you go to IMAGE comics https://imagecomics.com/
they are the ones who did start and still offering back end payment. ( Some other publishers did, but right now are out of business or not accepting new comic's proposals.)
Of course, IMAGE print and distribute on mainstream scale , your book or the book of any other Indi author if the book is good MATERIAL: Good artwork, original idea-story and compelling characters.
Giving independent authors and creative team the proper exposure and the chance for having real profit from sales. However, some of these books would barely cover costs, others would make substantial money back to authors and others would become Icons that could be translated to TV series or movies.
But without Image Comics structure is almost impossible for anyone else to reach similar goal. Even when everybody think they can offer the same arrangement to comics artists without paying the costs of going mainstream.
And yes, an initial contract is always very important when working for or with anyone else in the inception of any comics project.
Nobody knows what lies ahead when a good product is made.

We always have the chance of work for ourselves or somebody else on comics just for fun and the sake of it. Without contracts, deadlines or expectations of any money rewards.

Lee Nordling
08-02-2016, 11:12 AM
I just read this incredibly clear blog by the great Seth Godin (and if you haven't read his blog or seen his video lectures, they are AMAZING and a revelation about the processes of creation, education, and marketing; look for them!).

His blog today read:

Reviewing a contract

A deal, whether in writing or orally, is not to be considered lightly, because you fully expect to keep your end of the bargain. Three things to consider before saying, "yes":

What happens now: Who owes who what? What, precisely, does each side promise to do, and what does each side get? It can't hurt to write this out in English and add it to the agreement, just to be sure you both agree.

What happens if things don't work out: If you don't do what you say you'll do, what happens? If the other person can't pay or can't deliver, or wants to walk away, then what? When you leave yourself (and the other person) an out, you're almost certainly investing in a better future, because you know in advance what the options are.

What happens if things do work out: If everyone's wildest dreams come true, then what? Does that person who gave you three days of advice end up owning half your gourmet foods business that you've worked on for twenty years? Describe the hypotheticals, and plan them out together, because today's hypothetical is tomorrow's unfair reality.

The fine print is there for a reason, and if you don't like it or can't live with it, cross it out or walk away. There's no better time than this very moment to be clear, to be honest and to have a difficult conversation.

UrbanUrchin
08-03-2016, 12:50 PM
Wow, I go away for a few days and come back to a rousing discussion about this. I do think Steven made some good points, particularly about just keeping it simple, but I don't think contracts are a waste of time in any case. I've had several aborted starts (concepts developed, pages produced, even two whole short stories completed!), and each time I did it in a work-for-hire scenario, paying as much as I could afford to in order to get great work done. Even though things never took off like I hoped, I still own the work and can use it however I need to.

Lee, ayalpinkus and NatMatt, your perspectives are really getting to the heart of what I wanted to know. From what you've said I can really see why work-for-hire is probably still the way I should go. I just need to be clear about what services are being rendered when approaching each individual member of the team.

Stewart Vernon really hit the nail on the head with his post though. That's exactly the headache I want to avoid because so much of my publishing plan has to do with merchandising. I guess what I'll continue to do is negotiate a fair upfront rate for all usage rights and hope for the best. It keeps the onus on my dedication to the project and is less hassle in the long run.

Thanks for all your input. I feel reassured that I can make things work now.

Lee Nordling
08-03-2016, 02:31 PM
To quote Forby/Steven Forbes (no not that one): our work is done.

ayalpinkus
08-08-2016, 04:13 AM
Just saw this article on collaboration agreements:

https://www.stage32.com/blog/Collaboration-Agreements-What-They-mean-And-How-They-Work