A Simple Guide to Creative Contract Negotiation

By Gamal Hennessy

This is a modified excerpt from a book I’m working on called Independent Comic Book Publishing. It’s designed to walk you through the basics of contract negotiation. The post is geared towards comic book creators, but the information is also applicable to independent entertainers and small business owners of all types.  While this can’t be used as legal advice, I hope you’ll find it helpful.

Getting a contract signed for your independent comic book can be a complex process. First, you need to understand what a contract is and what elements go into an agreement (See A Simple Guide to Understanding Creative Contracts). Then, you have to figure out if the particular deal you’re working on requires an artist collaboration agreement (See A Simple Guide to Artist Collaboration Agreements), or a work for hire agreement (See A Simple Guide to Work for Hire Agreements). Finally, you have to agree on the terms of the specific agreement with each creator.

Achieving this consensus isn’t always easy. Both sides could have competing interests, agendas and levels of leverage. This post offers some guidance on how to negotiate a contract that everyone is happy with, instead of one that someone (or no one) is excited about signing.

How Do You Reach an Agreement Everyone Is Happy With?

Creating a mutually beneficial contract requires balancing relationships and interests. Because you’re going to be working with the other person for weeks or months, you don’t want that interaction tainted by negative feelings related to the contract. At the same time, you might not be able to give the other side everything they want for the sake of the working relationship.

What you can offer any potential business or creative talent will be based on:

1.    Your goals

2.    Your budget

3.    Your timetable

4.    Your level of interest in the skills and abilities of the individual.

The offer your potential talent wants to accept is based on:

1.    Their professional goals

2.    Their financial needs

3.    Their available time

4.    Their level of interest in your project and you as a publisher.

Because your interests are different and in some cases in direct opposition to each other, there is a tendency for each side to try and negotiate a compromise between the two positions. This is known as positional bargaining. The problem with positional bargaining is that neither side really gets what they want. Depending on the negotiating power of one side over the other, someone might feel they are signing a contract out of duress or with a certain amount of resentment. This isn’t the best way to start a creative relationship.

Fortunately, there is an alternative to positional bargaining. Roger Fisher, William Ury and other members of the Harvard Negotiation Project developed an alternative negotiation theory known as interest based negotiation in their bestselling books Getting Past No and Getting to Yes. While it is not a perfect solution to the negotiation process, it does strive to create solutions both sides want, instead of forced concessions.

How Does Interest Negotiation Work?

Ironically, understanding when it is time to walk away can help bring parties together. One of the primary concepts of interest negotiation is the Best Alternative to a Negotiated Settlement (BATNA), or what I like to refer to as options. A BATNA is “the most advantageous course of action someone can take if the contract negotiations fail”. For example, if a publisher wanted to hire you as an artist for their comic and your demands were more than they were willing to agree to, their option would be to hire someone else.

Most options are not that straight forward. In many instances, options have to be developed. Some negotiators begin by compiling a list of alternatives to the current proposal. At this stage, no alternative is rejected. This is a creative exercise to explore all possibilities to figure out what you actually want to accomplish with this deal. The most promising opportunities are then singled out and improved upon if possible until the best option to a contract is found. In our example, the publisher might have a list of other artists, or they could learn to do the work themselves, or they could create a novel instead of a comic, or they could try to sell the idea to another publisher. In the best case scenario, you have several different alternatives to achieve your interests.

The next step in the process involves trying to understand the other side’s options in specific detail so you can identify their interests. As an artist, you might want a combination of money, ownership, creative freedom, credit or other factors that are important to you.

When the time comes for all sides to negotiate the terms of a contract, the underlying interests of both sides are used to reach a consensus. Each side understands the interests of the other side and expresses their interests with the goal of seeking a flexible solution. If the goal of the publisher is to keep costs down and the goal of the artist is money, then a possible solution is for the artist to handle the art, inks, lettering and colors at a reduced page rate than the publisher would have to pay for four different people.  

What Are Interest Negotiation Techniques?

While every negotiation scenario is different, there are some basic principles that apply from the perspective of writing the contract.

1.    Look for a favorable agreement on all sides, not just an acceptable one.

2.    Create language in the contract on an ongoing basis to record areas of agreement

3.    Move towards commitments gradually on both sides

4.    Offer tentative commitments until you see the total package

5.    Be rigid in your pursuit of your interests, but flexible in terms of solutions

6.    Do not allow a “bottom line” to blind you from creative solutions.

7.    Consider being generous near the end but stick to your interests

How Does Leverage Impact Interest Negotiation?

Different sides have different levels of power and control in contract negotiations. Leverage is defined as the power one side has over the other side in the pursuit of their interests. Depending on the disparity between the parties, the leverage one side has over the other can undermine the interest negotiation process. For example, if the publisher in our example was Marvel or DC and you were an aspiring artist looking for their first major gig, their options would outweigh your options so much that you might sign whatever deal they put in front of you (See my post on Negotiating Power in Creative Contracts).

The concept of leverage might not strike you as fair, but as attorney and author David Tollen states in his book The Tech Contracts Handbook, “If you focus on what is fair, you might walk away from deals that make economic sense.  But that is a poor choice if you can’t get better terms from anyone else, and if accepting the terms would be more profitable than dropping the project.” It makes more sense to focus on the best option available, rather than fairness.

Keep in mind that leverage can be abused to the detriment of the more powerful side. The comic book industry is small. Reputations, good and bad, travel quickly. Power and influence are relative. Positions shift all the time. Keep the following ideas in mind, especially if you have the leverage:

1.    Don’t damage the relationship

2.    Don’t damage your reputation

3.    Don’t overstate your value.

4.    Don’t agree to things that won’t work for either side.

Drafting, negotiating, and signing the contracts for your creative project might take some time and cost you some money, but if you sign the right contracts up front, you'll save money in the long-term and put both you and your book in a better position to succeed.

If you have had contract negotiation issues in the past, feel free to share them in the comments below and tell us how you dealt with the problem.

Have fun with your comic.

Gamal

If you have questions about the business or legal aspects of your comic book publishing and you'd like a free consultation, please contact me and we can set something up that fits in with your schedule.

If you enjoyed this post, consider joining Comics Connection. Comics Connection gives creators a community to elevate their comic book careers. We offer access to business and creative resources you can’t find anywhere else. For a limited time, the first month of membership is free.

PLEASE NOTE: THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. IF YOU HAVE AN ISSUE WITH YOUR COMIC PROPERTY, DISCUSS IT WITH A QUALIFIED CONTRACT ATTORNEY OR CONTACT C3 FOR A FREE CONSULTATION

A Simple Guide to Work for Hire Agreements

By Gamal Hennessy

This is a modified excerpt from a book I’m working on called Independent Comic Book Publishing. It’s designed to walk you through the basics of work for hire agreements. The post is geared towards comic book creators, but the information is also applicable to freelance creatives and independent entertainers of all types.  While this can’t be used as legal advice, I hope you’ll find it helpful.

Freelance comic book creators are the lifeblood of the industry. While publishers are celebrated for the intellectual property they own, it’s the work for hire creators developing many of the characters, stories and milestone moments in comics. Creator owned books are rising in prominence, but many of them rely heavily on work for hire talent to turn their dreams into reality. A few independent publishers try to handle all aspects of the business and creative process of comic book publishing, but most do not have the skill or the time to go it alone (See You Need Two Teams to Publish a Comic). But for all their importance to the craft of comics, work for hire agreements don’t get the attention that matches their impact. When comics are made without a detailed work for hire contract, the publisher risks losing ownership of their intellectual property and freelance artists risk losing the revenue they are entitled to.

What Is the Work for Hire Doctrine?

One of the basic concepts in copyright law is the relationship between creation and ownership. In most situations, whoever creates an original work owns that work. The work for hire doctrine is an exception to that rule. “If a work is made for hire, an employer is considered the author even if an employee actually created the work. The employer can be a firm, an organization, or an individual.”

Under copyright law, a work for hire is created if it is “prepared by an employee within the scope of their employment or a work is specially ordered or commissioned for use” in a variety of situations. One of those situations is “as a contribution to a collective work”. Since comics are by definition a collective work, publishers regularly commission work for hire artists using work for hire agreements.

What Is the Benefit of a Work for Hire Agreement?

While there is plenty of hostility against work for hire agreements, there are benefits to both the publisher and the work for hire artist in the context of comic books. For the work for hire artist, there is a short-term financial gain. Many comics do not generate a profit, so artists relying on comic book sales to make a living might not be able to sustain themselves. Even if comic sales across the board were healthy enough for artists to survive, the profits for comics don’t materialize for months, sometimes years after the work is done and the book is published. Under a standard work for hire agreement, the artist is paid up front, regardless of the sales or profits of the published book.

For publishers, there is long-term profit potential. Published books are a source of revenue, but in the modern entertainment landscape, the intellectual property based on comics drives film, merchandise, television and video games (See Positioning Your Book for the Coming Content War). As an extreme example, the comic book industry as a whole generated two billion dollars in 2017. In 2018, Avengers: Infinity War generated a worldwide box office of more than two billion dollars, not counting merchandise or associated advertising.

Of course, even in the current age of comic entertainment, only a select few properties crossover into mainstream media. And almost none of the books that do find their way to various screens and shelves reach the heights of the current MCU, but copyright ownership gives publishers the potential for success. It is an investment with substantial risk that the work for hire artists don’t lose or profit from either way, depending on the agreement.

What is a Work for Hire Agreement?

A work for hire agreement defines the rights and responsibilities between an owner who commissions a work and the artist who creates that work. A work for hire agreement is different from an artist collaboration agreement (where two or more parties share in the ownership of intellectual property See A Simple Guide to the Artist Collaboration Agreement), or a license agreement (where one party gives another party the right to use some aspect of the intellectual property in exchange for payment).

Keep in mind that anyone working on the comic book who will not share in ownership of the intellectual property should sign a work for hire agreement. This includes freelance professionals on the business side of publishing like marketers or web designers who are not directly creating the comic book.

While a work for hire agreement will share some of the same foundation and housekeeping terms found in other comic book contracts (See my post on A Simple Guide to Creative Contracts), there are several basic and business terms unique to this type of agreement.

What are the Main Elements of a Work for Hire Agreement?

A well-drafted work for hire agreement will address the following issues:

1)    The Owner of the Work

2)    The Work for Hire Artist for the Work: Each artist performing work for hire services needs to sign a separate agreement with the Owner.

3)    The Work explains what the Owner wants the Artist to do. This should be described in as much detail as possible, but at a minimum it should include.

a.    The working title

b.    A description of what the final product will be, whether it’s a web comic, single print issue, graphic novel or ongoing series

c.    The Services the Work for Hire Artist is providing.

4)    The Delivery Schedule: of when Artist will deliver the Services.

5)    The Compensation: including page rates, hourly rates, royalties or any combination of the three. Compensation terms should also include:

a.    The timing of payments

b.    Credit in the final product

c.    Ownership of the original artwork (if applicable)

d.    Use of the Services in their professional portfolio

6)    The Advance Recoupment: Any and all payments made to any party before revenue is generated and then deducted from the royalties when revenue is generated. For example, the artist might get a page rate for their work on the book before publication, but that money can get recouped by the Owner when the book goes on sale.

7)    Missed Deadlines: any penalties to the Artist for missing the Delivery Schedule.

8)    The Withdrawal: any penalties if the Artist is unwilling or unable to complete the Work

Drafting, negotiating, and signing the contracts for your creative project might take some time and cost you some money, but if you sign the right contracts up front, you'll save money in the long-term and put both you and your book in a better position to succeed.

If you’re a comic book creator or freelance artist who has had artist collaboration agreement issues in the past, feel free to share them in the comments below and tell us how you dealt with the problem.

Have fun with your comic.

Gamal

If you have questions about the business or legal aspects of your comic book publishing and you'd like a free consultation, please contact me and we can set something up that fits in with your schedule.

If you enjoyed this post, consider joining Comics Connection. Comics Connection gives creators a community to elevate their comic book careers. We offer access to business and creative resources you can’t find anywhere else. For a limited time, the first month of membership is free.

PLEASE NOTE: THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. IF YOU HAVE AN ISSUE WITH YOUR COMIC PROPERTY, DISCUSS IT WITH A QUALIFIED CONTRACT ATTORNEY OR CONTACT C3 FOR A FREE CONSULTATION.

A Simple Guide to the Artist Collaboration Agreement

By Gamal Hennessy

This is a modified excerpt from a book I’m working on called Independent Comic Book Publishing. It’s designed to walk you through the basics of artist collaboration agreements. The post is geared towards independent comic book creators, but the information is also applicable to freelance creatives and independent entertainers of all types.  While this can’t be used as legal advice, I hope you’ll find it helpful.

Many historical comic book contracts were between artists and publishers. A company like Marvel would hire the artist or writer to create stories for their characters on a work for hire basis. Today, the rise of technology and markets to support independent comic book publishing has increased the need for contracts between comic book creators. Unfortunately, I’ve met too many creative teams that decided to make a comic together without a contract.

What many comic book creators don't realize is that this type of contract is just as important as the one between the artists and the publisher. Without a well-defined artist collaboration agreement, an otherwise successful partnership can lead to misunderstandings, conflict and disputes down the road that can be just as costly as any lawsuit with a publisher.

When Do You Need an Artist Collaboration Agreement?

Certain creative endeavors like comics, movies, films and theater are normally created through a collective effort. While there are some comic book creators who do everything on their own, most projects are created by the continuing collaboration between the members of the group. In the same way that a music band combines the talent of each musician to make music, a creative team comes together to make a comic book (even if they only come together in a cloud server that they upload the work to).

You need an artist collaboration agreement when members of the creative team are going to own a piece of the book. Just like a band or a movie crew; each member of the team should know what he or she is getting out of any deal that involves the property they work on. This might not be significant when you are selling a couple hundred books a year on your website and losing money on the cost of production. This becomes a huge issue when a property is picked up for a film, TV show, video game or merchandise deal. It helps to have all the issues squared away before Hollywood starts calling. If you wait too long, anger, resentment and actual litigation could tear the team apart just when things start to take off.  You need a signed artist collaboration agreement with each member of the creative team before you start production on the book.

What is an Artist Collaboration Agreement?

An artist collaboration agreement defines the rights and responsibilities between two or more parties who plan to share in the ownership of the overall intellectual property. An artist collaboration agreement is different from a work-for-hire agreement (where one party pays another party to work on an intellectual property project for money and not ownership), or a license agreement (where one party gives another party the right to use some aspect of the intellectual property in exchange for payment).

While an artist collaboration agreement will share some of the same foundation and housekeeping terms found in other comic book contracts (See my post on A Simple Guide to Creative Contracts), there are several basic and business terms unique to this type of agreement.

What are the Main Elements of an Artist Collaboration Agreement?

A well-drafted artist collaboration agreement will address the following issues:

1)    The Parties describes who is involved in the contract.

2)    The Work explains what the Parties are trying to create. This should be described in as much detail as possible, but at a minimum it should include.

a.    The working title

b.    A description of what the final product will be, whether it’s a web comic, single print issue, graphic novel or ongoing series

c.    The basic elements of the story, including the characters, settings, and other identifiable aspects of the book. If a synopsis and/or character designs of the work are available, they should be included in the contract.

3)    The Copyright: breaks down the copyright ownership among all the members of the creative team as a percentage.

4)    The Trademarks: breaks down the trademark ownership among all the members of the creative team as a percentage.

5)    The Compensation: divides the revenue for all possible uses of the story and characters in the book, including:

a.    Interactive Media

b.    Screenplay Licensing

c.    Premium Cable Licensing

d.    Subscription Television Licensing:

e.    Broadcast Television Licensing

f.     Advertising

g.    Emerging Media Licensing

h.    Novelization or Publishing:

i.      Merchandising

j.      Trademark Licensing (other than merchandise):

k.    Live Performance Licensing

You might notice that the division of compensation goes far beyond the money you might collect for the initial publication of the comic book. But comic book stories and characters can exist and make money in any form of media now. It’s better to negotiate the video game rights for your story up front, even if your book never makes it to Xbox.

6)    The Advance Recoupment: Any and all payments made to any party before revenue is generated and then deducted from the Compensation when revenue is generated. For example, the artist might get a page rate for their work on the book before publication, but that money can get recouped by the rest of the group when the book goes on sale.

7)    The Responsibilities: lists the business, creative, and administrative responsibilities of each party in the development of the work in terms of both daily management and decision making authority. (See my post It Takes Two Teams to Publish a Successful Comic) It is not uncommon for each member of the team to handle multiple responsibilities including:

a.    Business Management (determining budgets, dealing with contracts, etc.)

b.    Human Resources (hiring work for hire artists and professionals)

c.    Creative Production

                                          i.    Editing

                                         ii.    Scripts

                                        iii.    Artwork

                                       iv.    Inking

                                        v.    Lettering

                                       vi.    Coloring

                                      vii.    Design

                                     viii.    Flatting

d.    Marketing (website maintenance, conventions, and direct market, etc.)

e.    Advertising (social media, Diamond ads, etc.)

f.     Distribution (online, printing, shipping)

g.    Sales (account management, accounts receivable)

h.    Finance (accounts payable, taxes)

8)    The Withdrawal: What happens if one or more members of the team is unwilling or unable to complete the Work before it is completed. Allowances have to be made for several aspects of the deal including

a.    Copyright ownership

b.    Trademark ownership

c.    Compensation

d.    Recoupment (if any)

While the artist collaboration contract can be overly complex when dealing with these issues, the best ones are understandable and don’t include a large amount of legal gymnastics. At the same time the elements of an artist collaboration agreement should not conflict with the terms of any agreement with an outside publisher or licensee of the property. Your legal advisor can review both contracts to ensure there is harmony between them.

Drafting, negotiating, and signing the contracts for your creative project might take some time and cost you some money, but if you sign the right contracts up front, you'll save money in the long-term and put both you and your book in a better position to succeed.

If you’re a comic book creator or freelance artist who has had artist collaboration agreement issues in the past, feel free to share them in the comments below and tell us how you dealt with the problem.

Have fun with your comic.

Gamal

If you have questions about the business or legal aspects of your comic book publishing and you'd like a free consultation, please contact me and we can set something up that fits in with your schedule.

If you enjoyed this post, consider joining Comics Connection. Comics Connection gives creators a community to elevate their comic book careers. We offer access to business and creative resources you can’t find anywhere else. For a limited time, the first month of membership is free.

PLEASE NOTE: THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. IF YOU HAVE AN ISSUE WITH YOUR COMIC PROPERTY, DISCUSS IT WITH A QUALIFIED CONTRACT ATTORNEY OR CONTACT C3 FOR A FREE CONSULTATION.

What is Comic Book Law?

     By Gamal Hennessy

Lawyers are similar to doctors in terms of specialization. While some of us have a general practice, most of us focus on a particular area. These areas of expertise allow for greater focus and better results for our clients. That’s why you wouldn’t let your podiatrist perform brain surgery on you and you wouldn’t trust your criminal case to your real estate lawyer. Unique industries require unique professionals.

            I refer myself as a comic book lawyer, but this isn’t an official area of law. Unlike corporate or constitutional law, you can’t study comic book law in any law school that I know of. It is debatable if there is such a field. This post is my explanation of what comic book law is and why it is important for both creators and the industry. I’ll also offer up the names of three other comic book attorneys who are helping to protect the business and financial elements of this art form.

A Hybrid Legal Specialty

What I refer to as comic book law is a focused form of publishing law that also deals with broader aspects of entertainment law. Comic book law shares similar issues as other types of publishing, including copyright law, contracts, and first amendment issues. Where it differs is in aspects of production before the book is made and associated products after the books are released.

A Cooperative Legal Specialty

Most novels and poems are written by a single individual. Most comics are created by a team of at least two and as many as seven people. Some independent comics are published as the joint effort of a dozen or more professionals (See You Need Two Teams to Publish a Successful Comic). The collaborative nature of comics means that like other cooperative forms of art, contractual relationships between the artists are as important as the agreements between the artists and the distributors. (See All For One: Artist Collaboration Agreements). Whether you’re talking about work for hire contracts, joint ownership agreements or something in between, the ownership of every comic requires a unique type of contract (See What Kind of Contracts Do You Need for Your Comic?). Children’s book publishing also has aspects of collaboration between the illustrator and the author, but the variation of relationships between comic book creators is more varied and complex.

A Commercial Legal Specialty

            Comics are also a unique form of publishing based on the life that the characters and stories enjoy off the page. Crossover media, merchandise and derivative products have been part of the comic book business since their infancy (See Superheroes: A Never Ending Battle). Very few novels or prose works generate substantial collectibles or merchandise, unless it’s a children’s book or the book is licensed to become a film. Comic characters generate merchandise as a natural by-product of publication (See Making Comics Isn’t Really About Making Comics Anymore).

From a business and legal standpoint, this means that comic book law needs to consider the intellectual property implications of both copyright and trademark law (See Image and Story: The Role of Copyright and Trademark in Comics), film, television, and video game licensing (See Comics are Thriving in TV and Movies) as well as business formation for new publishers in the market (See The Benefits of Forming an LLC for Your Independent Comic). In many cases, the business and financial impact of the secondary market is more complex and more lucrative than the book itself.

An Established Legal Specialty

            Comics have been a staple in international entertainment for decades (See In France, Comic Books Are Serious Business), but like comics in America, comic book law isn’t given the same deference as other areas of law.  But this viewpoint ignores the importance of comics as an industry and the ongoing work of a host of legal professionals.

In 2017, comics were a two billion dollar industry not counting movies, merchandise or related products (See Comic Book Sales by Year). There are more than three hundred active comic book publishers in America (See List of Comic Book Publishers) and many of them have comic book lawyers on staff or as outside counsel. Specifically, these three gentlemen have been practicing and/or writing about comic book law for several years.

• Thomas Crowell: is a partner in the firm of Lane Crowell LLP, who advises comic book clients as well as other entertainment professionals. He often lectures on comic book law at New York Comic Con and has written an in-depth book on the subject called The Pocket Lawyer for Comic Book Creators

• Joe Sergi: is an author and attorney who has both written comics and taught comic creators about their legal rights. While he does not represent comic publishers, he has written The Law for Comic Creators and offers legal insights to professionals at Comics Experience.

• Dirk Vanover: is an entertainment and intellectual property attorney who specializes in media, marketing and licensing. He has written extensively on entertainment issues, including Comics Startup 101: Key Business and Legal Issues

Comic book law is not as respected or well known as corporate law or criminal law. It is an adaptive and complex field that requires specific expertise and understanding about the industry. Every comic creator and publisher needs to find the right lawyer to protect the rights and revenue for their work. A unique industry requires unique professionals.

If you enjoyed this post, consider joining Comics Connection. Comics Connection gives creators a community to elevate their comic book careers. We offer access to business and creative resources you can’t find anywhere else. For a limited time, the first month of membership is free.

PLEASE NOTE: THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. IF YOU HAVE AN ISSUE WITH YOUR COMIC PROPERTY, DISCUSS IT WITH YOUR LEGAL ADVISOR OR CONTACT C3 AT gamalhennessy@gmail.com FOR A FREE CONSULTATION.

What Kind of Contracts Do You Need for Your Comic?

By Gamal Hennessy, Esq

Independent comic book creators in the 21st century understand the importance of protecting their work with contracts. Some see the explosion of comics in the mass media and hope their story can make it to the screen someday. Others have heard the horror stories of artists and writers losing major projects because they didn’t have a contract or they signed the wrong deal. Creators don’t need to be told why they need a contract.

But when it comes to what kind of contract they need for a particular situation, the answers aren’t as clear. I specialize in writing and reviewing contracts for comic creators, so I know what’s required in different situations. To help comic creators on all levels get more confidence with the legal aspect of the industry, I’ve developed packages of custom contracts to help protect their IP and get their books published.

The Three (or Four) Comic Contract Packages

I normally have three types of clients:

1. The new creator who is creating their first book or the first book in a new series
2. The independent publisher who has plans to release books on an ongoing basis
3. The artist pursuing a creator driven deal with an established publisher

I created a collection of contracts to match the needs of each type of client.

• The Comic Creator Package for the singular series or first time creator includes

1. A Collaboration Agreement to define the relationship among everyone who owns a piece of the book.
2. A Work for Hire Agreement for everyone who is getting a page rate but doesn’t own a piece of the book
3. Copyright filing of the Comic with the US Copyright Office to memorialize your ownership

• The Independent Publisher Package for the ongoing creative team includes

1. Corporate formation for your company including an operating agreement and EIN number management (See the Benefits of Forming an LLC for Your Comic)
2. A Collaboration Agreement
3. A Work for Hire Agreement
4. Copyright filing of the Comic

• The Creator Driven Comic Package for the artist licensing their book to an established publisher

1. Corporate formation including Operating Agreement and EIN Number Management
2. A Collaboration Agreement
3. A Publishing Agreement* defining the relationship between you and your publisher
4. Copyright filing of the Comic

* If your Publisher has their own contract and refuses to use yours (See Negotiating Power in Creative Contracts), I’ll review their contract for you and breakdown every paragraph so you understand every aspect of the deal.

No matter what kind of comic book creator you are, you need to protect your story, characters and the potential income that your creativity represents. If you’d like to contact to discuss the needs of your specific project, just send me an email and we can set something up.

Have fun.

G

PLEASE NOTE: THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. IF YOU HAVE A LICENSING OR INTELLECTUAL PROPERTY ISSUE, DISCUSS IT WITH YOUR LEGAL ADVISOR OR CONTACT C3 AT gamalhennessy@gmail.com FOR A FREE CONSULTATION.

Talking to Professionals on the Business of Comics

by Gamal Hennessy

The comic book industry is a confusing, chaotic and insane industry for everyone involved, especially the newcomer. Fledgling writers and artist often make mistakes on the business side of things that cost them tens of thousands of dollars, years of work or both.

The best way to avoid mistakes in the comics industry is to learn from professionals who already know what they're doing. Over the summer, Aaron Long of Comicosity asked dozens of established comics professionals what type of advice they would give to new creators. The insight they provided covered professionalism, marketing, accounting, time management and outlook, but one of the most consistent statements is the same thing I've preached on this site for years. 

COMIC CREATORS NEED TO UNDERSTAND AND NEGOTIATE THEIR CONTRACTS

When I worked at Marvel and Central Park Media, we often sent out contracts to talent saying "have your lawyer look over this before you sign it" knowing full well that person didn't have a a lawyer. I started C3 to change that and give writers and artists a chance to understand and benefit from the legal side of comics. The professionals already understand this. Read their comments and learn from their mistakes. 

Have fun.

Gamal

Success in the comics industry requires an understanding of the business, creative, and legal aspects of the medium.

Sign up forThe Professional Comics Creator to get monthly e-mail news, tips and advice on how to get the most from your characters and stories

PLEASE NOTE: THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. IF YOU HAVE A LICENSEING OR INTELLECTUAL PROPERTY ISSUE, DISCUSS IT WITH YOUR LEGAL ADVISOR OR CONTACT C3 AT gamalhennessy@gmail.com FOR A FREE CONSULTATION.

Get What You Give (Rights and Revenue in Comics)

by Gamal Hennessy

A contract is an agreement between one or more groups for the exchange of resources. The exchange could be time for money, goods for services, property for future gains or any combination of those things. The best agreements exchange roughly equal resources. The worst ones have one side trading large amounts of resources for little or nothing in return.

This is the problem that artists run into with many of the contracts that I see. The most important service I provide is showing my clients what they are giving up in comparison to what they are getting. I’d like to provide an overview of the different types of rights and revenue streams as a general overview for creators looking to get their projects into the market.

Types of Rights                               

Comics and publishing are governed by a branch of the law called intellectual property. Copyright law is a specific type of intellectual property. A copyright gives the creator of an original work (like a comic) the right to benefit from the sale and distribution of that work. There are various types of ways currently available for comic creators to benefit from their creativity. Some of the major distribution methods include:

• Publishing (Traditional printing, digital printing, novels, audiobooks, etc.)
• Public Display (gallery displays of artwork)
• Theatrical (Movies whether live action or animated)
• Television (including network, basic cable, premium cable, PPV whether live action or animated)
• Home Video (including DVD, Blu-Ray, etc.)
• Live Performance (including Broadway performances and theme park performances)
• Interactive (including console computer or mobile video games)
• Merchandise
• Sponsorships or product placement

As new forms of media distribution are created, new rights are created for the artists. These rights are universal, but they can be divided or carved out by geographic area, time frame, distribution channel, language and other factors. (This division can be complicated, so I’m going to save that for another post)

Types of revenue

Just as there are different rights that creators can use to get their work into the world, there are various ways that they can be paid. Comic creators need to focus on four ideas:

• A royalty is a percentage that the artist earns for every finished unit that is sold. For example, an artist might receive 30% of every one of their comics that is sold to the public.
• An advance is paid before the work is finished. For example, a writer of a novel might receive money up for her novel based on the proposal not the finished product.
• A minimum guarantee (MG) is money paid up before the work is finished, based on anticipated sales. For example, if a toy company plans to sell a new licensed toy for $10 and the creator gets 10% of that sale, then the creator gets $1 per unit sold. If the company expects to sell 100,000 units, then the MG that the artist gets for this deal is $100,000.
• A page rate is a flat fee paid to the artist for every page accepted by the client or publisher. For example, a penciler with a $300 page rate deal gets $9,600 for a 32 page book, not counting the cover.
• These are broad revenue concepts. They are often altered and refined by concepts like gross, net, recoupment, offsets and other variables. (This is another complicated subject that I’ll can talk about later.)

Choices that Artists Must Make

In certain comic deals, the types and amounts of revenue are fairly straight forward, like the work for hire page rate. There is more confusion for creators pursuing creator owned deals. There is often no advance, no MG, and a blanket royalty rate for all forms of distribution. This puts them creators in a dangerous position since the lack of upfront money and the uncertainty of any profitable sales in the future means that the creators are really working on spec while at the same time giving up all their rights to their property.

From the publisher’s perspective, it is understandable why they would do this in their contracts. Publishers protect themselves from risk by limiting exposure to projects that might not be financially viable. At the same time, they maximize their potential gain by securing as many rights as possible for projects that are financially viable. Artists need learn the same lesson. They need to counter the publisher’s position by attempting to limit the rights that a publisher gets for projects that are financially viable and maximizing revenue for every project they do.

I know negotiating power is often limited for artists. But having a clear understanding of the relationship between revenue and rights and clear goal of where they want to go can help maximize their limited negotiating power and increase their chances of success.

Best

Gamal

Success in the comics industry requires an understanding of the business, creative, and legal aspects of the medium.

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PLEASE NOTE: THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. IF YOU HAVE A LICENSEING OR INTELLECTUAL PROPERTY ISSUE, DISCUSS IT WITH YOUR LEGAL ADVISOR OR CONTACT C3 ATgamalhennessy@gmail.com FOR A FREE CONSULTATION.