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What is Comic Book Law?

Added on by Gamal Hennessy.

     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.

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.

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.

How Do You Register a Copyright for Your Comic?

Added on by Gamal Hennessy.

If you don’t see your comic as a viable commercial concept or if you think it is viable but for whatever reason you prefer to you are comfortable with the characters and story being used freely by anyone and everyone, then registration might not make sense for you. But if you plan to invest time, money and energy into your idea and you want a better chance to benefit from your investment, the benefits of registration will be helpful to you

Read More

The Politics of Making Comics

Added on by Gamal Hennessy.

Comics, like other forms of popular art, have always been influenced by the political climate of the period they are created in. From the mythical stories of Kirby ready to face down nazi sympathizers who threatened him for his work in Captain America, to Seduction of the Innocent and the subsequent congressional hearings, to Comicsgate, politics have always been a part of making comics.

            Against that backdrop, the termination of Chuck Wendig last week is disturbing, but not surprising. I’ve written about the contractual tools parties can use to dictate the private activities of their business partners in earlier posts (See Avoiding the Trump Effect in Your Creative Contracts) and even a company like Marvel, who has been the target of Comicsgate because of their diversity efforts (See Is Diversity Killing Marvel Comics) can feel the reactionary pressure to pull away from an artist they see as too controversial for their IP. The deeper question is what kind of impact this move will have on comic book artists in the future.

            Will this create a chilling effect on emerging artists who rely on the Big Two as their main source of income?  Will it push away established artist who cherish their right to be vocal about their beliefs outside of their professional work? Will fans of fired artists drift away from publishers? Will aggressive elements on any side of a political issue see this as a signal to force more creators to be harassed, censored, or fired?

            What do you think the Wendig fallout will be, and how will it affect the way you make and read comics?

Have fun.

Gamal

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.   

Get Your Comic Book Career Handbook for Free

Added on by Gamal Hennessy.

The world of comics is chaotic, complex, and on a certain level, crazy. Few other industries transform fantasies and nightmares into a profitable business. Like many fans, you have probably imagined yourself working in the industry at one time or another. Many of us are insane enough to pursue our passion as a profession.

I’m offering something writing a book to help make your journey a little easier. It’s called Your Four Careers in Comics: A Business and Legal Framework for Professional Comic Creator (which I’m calling YFCC for short). My goal is to explore the various aspects of each position to help you maximize your professional creativity. With luck, this framework, combined with your talent and determination, will lead you to a fulfilling career in the complex world of comics.

YFCC is currently scheduled for release in Summer 2018, but I’m offering the roadmap for that book to everyone who signs up for my comic book industry newsletter The Professional Comics Creator. Sign up now and learn more about the different aspects of the comic book industry and how you can fit into it.

PLEASE NOTE: NEITHER THIS BLOG NOR FOUR CAREERS IN COMICS ARE A 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.

How a Lawyer Beat Darth Vader

Added on by Gamal Hennessy.

By Gamal Hennessy

Star Wars is one of the most well-known franchises in modern entertainment. Return of the Jedi holds a special place in the mythology of the Jedi saga. But the film that gave us Darth Vader’s last moment of redemption is also the film that continues to disappoint at least one actor.

Several news sites reported on a recent interview with David Prowse, the actor inside the Darth Vader suit for Return. According to letters received from Lucasfilm to Mr. Prowse, Return of the Jedi has never made enough money to trigger a net royalty payment for his performance. In spite of the film making more than five hundred and seventy million dollars in the box office since its initial release over thirty years ago, Mr. Prowse, and actors like him, are not in a position to get paid beyond their initial salary for the project.

Gross vs Net

While the story is notable for the popularity of the character and the prestige of the film, the elements of it are fairly common in contracts of all types, not just entertainment related ones. The difference between gross and net in the calculation of revenues can be the difference between being paid indefinitely and not being paid at all.

A while back, I wrote a piece about the difference between gross and net payments in creative contracts (See Your Slice of the Pie: Part 1). I explained Gross revenue or gross profits as the pure income that a product or service generates while Net revenue or net profits is the income that a product or service generates minus certain expenses. Taking a very simple example, if you acted in a film and were promised a cut of the gross revenue, you’d get paid based on how much money the movie made. If you agree to take a cut of the net revenue, you get paid based on how much is left after all the expenses for the film are paid. If the expenses of the film are never paid off, then you never get any royalty, even if you are the most dread Sith in the galaxy.

Hollywood Accounting

The film industry is often blamed for manipulating accounting methods to avoid paying artists. The term “Hollywood accounting” refers to concepts like using net profits instead of gross to pay creatives and then extending expenses out forever to ensure a film never gets to a stage where royalties need to be paid. Hollywood might use these tactics in the most spectacular ways, but they are by no means the only entertainment industry with this practice. In fact, it is not just the entertainment industry. Any type of contract where payments are based on future earnings can be manipulated by the gross vs. net concept.

Eyes Wide Shut

People may mock actors like Mr. Prowse who agree to net profits, but these deals have to be considered in context to be understood. In many cases, a creative person is so eager to cash in on his big break that they agree to bad terms just to get the deal done (See You Signed the Contract, but Do You Know What It Says?). In other instances, an artist often doesn’t have the negotiating power to push for the best terms. (See David and Goliath in Contract Negotiations) Sometimes, an artist doesn’t have any legal advice when signing a contract. This often leads to situations far worse than Mr. Prowse (See Why Artists Need Lawyers)

One word or concept can make a world of difference to a contract. If you’re not trained to find it, not even The Force will be able to help you.

Sign up for the Creative Contract Newsletter to learn about the legal issues facing artists, writers and creative professionals everywhere. It's free, it's monthly and it can help protect your dreams.

PLEASE NOTE: THIS EMAIL 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.

Have fun.

Gamal

Can We Have Too Many Comic Book Movies?

Added on by Gamal Hennessy.

by Gamal Hennessy

Last week was typical in the new normal of comics based entertainment. The latest news from the new seasons of Agents of Shield, Arrow, Flash, and Gotham leaked across the internet. Hints about the new Daredevil Netflix series competed with news about the Powers, Lucifer and Supergirl TV shows (See Superhero TV Roundup). Deadpool got a launch date for his film and a plot synopsis was leaked for Age of Ultron. New comic news comes out almost every day in 2014. Where does it end, and what does this new world mean for the creators of this work?

The Reality TV Link

There was a time before the current “golden age” of television where unscripted or “reality” TV dominated the pop culture landscape. It began with experimental shows like MTV’s Real World and then expanded into things like Road Rules. A few years later, shows like Survivor, the Bachelor and American Idol became prime time staples. That prompted a flood of reality programming. The category got so big it had to develop subgenres to create differentiation. They had makeover shows, celebrity shows, and competition shows. Every network felt the need to jump into the category. Networks like the History Channel and Food Network created shows having little or nothing to do with the channel’s original purpose. The phenomenon became so big MTV itself morphed into a reality TV station. For all intents and purposes it abandoned music videos altogether.

The Tail That Wags the Dog

Consider the evolution of comics based entertainment over the past twenty five years. The success of films like Batman in 1989, Spider-Man in 2002 and the Avengers franchise in 2013 have made this genre of film one of the most financially successful genres in the history of movies. (See IMDB Highest Grossing Films of All Time). When you add the success of TV series like Smallville and Arrow to the equation, not to mention animated series like TMNT, Batman, Justice League and X-Men and you have a content avalanche that’s only gaining momentum. We’ve reached the point now where some universities are devoting college classes just to the comic book movie phenomenon (See New College Course for the Marvel Universe). The industry has come a long way from the sad days of films like Howard the Duck and Spawn.

But how far can this momentum take us? Consider this:

  • Unlike reality TV, it will take more than a box office flop (or even a series of flops) to stop it. Green Lantern, Punisher and Ghost Rider taught us that.
  • It won’t come from a lack of “A  List” characters. Iron Man wasn’t a household name before RDJ got to it and no one knew who Guardians were before last year.
  • It’s not just a game for Marvel and DC, since Wanted, Sin City, Kick Ass and Walking Dead have shown independents can take their titles to the screen too.

Will comic film and television get their own awards category at some point? Which network will abandon its original mandate and become a comic entertainment channel? The questions seemed silly ten years ago. Now it doesn’t seem so farfetched. In the world of comic entertainment, comics are becoming the bottom priority, not the top (See Making Comics Isn’t Really about Comics Anymore)

Forward Thinking

What does all this mean for the aspiring writers and artists? I think there are three takeaways anyone in the industry should keep in mind as they build their careers:

  • Opportunities beyond traditional comics are continuing to grow not just in terms of TV and film, but in the areas of video games, streaming video and other forms of entertainment
  • While the chances of translating any given property into a mainstream market release is still rare, it is essential for creators to know and protect the rights they have in the comics they create
  • The amount of quality entertainment coming into the marketplace can raise the bar across the industry and drive innovation in art and story quality.

We might be living in the golden age of comic entertainment, but it will take creative expansion and prudent business choices to keep the momentum going.

Have fun.

Gamal

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.

Are You Working for Free (Considering Consideration)

Added on by Gamal Hennessy.

Consideration is a basic concept when you’re dealing with contracts. It’s not about being considerate in terms of being thoughtful, it’s about an exchange of value.

In most cases a contract is an agreement between two or more parties who agree to trade something of value. A lot of things can be thought of as valuable in contracts: money, goods, services and even promises can be used as consideration under certain circumstances. As an independent artist, there are four type of consideration you should look for in your contracts. If you don’t find any of them in a particular deal, then the deal might not have any value to you.

The Four Types of Consideration

  • Delivery Based Consideration: You get something specific once you deliver the agreed upon material. For example, if you draw 22 pages for $300 per page, then you get $6,600 upon delivery of the pages. This type of consideration could be defined as a flat fee, based on the number of words or pages or some other measure of performance. This type of payment is typical of work for hire agreements where the artists is hired to perform a specific task for a limited amount of time (See Contracts 101: Creator Owned v.s. Work for Hire)

  • Performance Based Consideration: You get something specific once the project begins to generate some sort of profit. For example, if you are entitled to 20% of the gross revenue of a book, then you make money if and when money comes in from the sale of the book. This is a common form of consideration for collaboration agreements, self-publishing platforms like Kobo and KDP and creator owned agreements with certain publishers.

  • Combined Consideration: You get paid coming and going. In an extreme example, Robert Downey Jr. allegedly pulls in up to fifty million dollars in direct salary, box office bonuses and back end participation for playing Iron Man in the movies (See RDJ Pay Set to Hit Fifty Million). While you might never make as much as RDJ, these are the most lucrative types of deals because they give the artists both protection against a poor performing book and the benefits of a successful book.

  • Production Consideration: You get someone else to pay for the cost of your project. For example, if you have a story you want to publish, but can’t cover the production and distribution costs of the release, someone else can pay those upfront costs to get your work out into the world. This is the least lucrative kind of consideration, because an artist can lose all the rights to their characters and stories for a few thousand dollars that they never receive directly. While many of these deals can provide exposure and ego gratification for the artist, most people regret signing these deals, especially if the project becomes successful and they have no ability to share in the financial windfall.

One of the first things you need to ask yourself when looking at a contract is ‘what am I giving up and what am I getting for it? Giving up your time and effort for cash is a way to make a living. Giving up your inspiration and creativity for the chance at future success is also a decent idea. Giving up everything for nothing is no way to manage your career. Always try to get some consideration in your contracts, even if the other side isn’t being considerate.

 

Have fun

Gamal