Words in the legal world have different meanings than words in the real world. For example, most people define an assignment as a task, duty or responsibility given by one person to another person. In the world of contracts, an assignment is the transfer of contractual rights and obligations from one party to another party. In most contracts, references to assignments are buried deep in the back of the agreement when your eyes are already glazed over and skipping anything that doesn’t look like the signature line. But certain assignment language can turn a good deal into a bad one right before your eyes.
Imagine yourself as someone who makes comics. Also imagine yourself working hard to get your name out there at cons and online. You meet a small publisher and the two of you hit it off. He loves your work and offers you a deal. It’s not a great deal because it’s your first self-published project, but you take it anyway. Your book comes out and you’re as proud as a new born parent.
Your publisher treats you like gold. He goes beyond the language in the contract to support and promote your book. He reports sales on time and he even pays you. Your book and the other titles in his catalog start to get a lot of buzz. Hollywood starts knocking on the door. Suddenly, people are talking about TV, video games and even movies. Your publisher gets an offer for the entire company and he takes it. Now instead of being published by a small visionary publishing company, your book is swallowed up by a big vertically integrated conglomerate.
Your new publisher does not treat you like gold. Your contact at the central office has no idea who you are and isn’t interested in finding out. Your book is buried in an avalanche of content. The money stops. Your book becomes inventory for other media, but it is constantly pushed aside for higher profile properties. Your entire relationship with them is defined by the original unfair agreement and you want to take your book elsewhere.
That’s when you read the assignment clause of your contract and realize there’s a problem.
Types and Options
Assignment clauses boil down into two types; mutual and non-mutual.
- In mutual assignment, you or your publisher could assign your rights in the contract to someone else at a later date or neither of you can ever assign your rights to anyone.
- In a non-mutual type of assignment, only one of you has the right of assignment and the other side is stuck.
Publishers have a vested interest in being able to assign contracts. Their ability to sell their company is based in part on what is in the catalog. A company won’t be worth much if every title can walk out the door after a sale. Because of this and the inherent negotiating imbalance most artists have (See David vs. Goliath) many artists are not in a position to get a non-mutual assignment clause that goes their way. Many of them can’t even get a mutual assignment clause. Quite a few of them are stuck in a bad position.
Your Mission, If You Choose to Accept It…
The rights to catalogs change hands more often than you might think. Aspen Comics recently acquired the rights to Big Dog Ink. A few years back, DC acquired Wildstorm and integrated that entire universe into the New 52. In what is perhaps the largest catalog acquisition in recent memory, Disney bought Marvel and Star Wars. As comic properties become more lucrative (See Making Comics Isn’t Really About Comics Anymore) more publishers will see value in having catalogs they can assign.
Your response to this situation is threefold:
- Understand what kind of assignment clause you are dealing with and what options you have to walk away from a new publisher in the event of a sale
- Negotiate for the best overall contract you can get upfront
- Understand your long term success will be based on the language in your contract as much as, if not more than, your relationship with the publisher.
In some cases, you might want to have the rights to your book assigned to another company. Just understand the process and work to adapt the contracts you sign to the goals you have.
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 firstname.lastname@example.org FOR A FREE CONSULTATION.