Attorney, Author, and Business Consultant for the Comic Book Industry

Filtering by Tag: Marvel Comics

Are Independent Comics Worth Making If Marvel Stops Publishing?

Added on by Gamal Hennessy.

by Gamal Hennessy

An aspiring creator sent me this direct message on LinkedIn in the wake of the Marvel SXSW panel:

Q: I just read that DC and Marvel might be shutting down their comic book lines and cease all publications. In your opinion, what does that mean for the indie folks? Is it worth doing comics?

The rumor wasn't surprising. Variations on the same story pop up on the internet from time to time as part of the persistent “comics are doomed” rumor.

The denial from Joe Quesada isn't surprising. Neither is the refusal of some websites to accept that denial. Websites need traffic, after all.

The creator's first question also made sense to me. When Waldenbooks disappeared, authors wonder how the book market would change. The same thing happened to people in the music industry when major record stores like Tower and Virgin shut down.

The analogy between Marvel and independent creators isn’t the same as the relationship of authors and musicians to their former distribution outlets, but the broad idea is similar. Seismic changes in any entertainment industry will have a ripple effect on everyone from the biggest players to the struggling artist.

But it was the second question that threw me off. It’s grounded in the idea that The Big Two are synonymous with the comic book industry. So if one of them (or both of them) stop publishing comics, then independent comics aren’t worth publishing. As if the creativity, inspiration and passion of thousands of creators might become irrelevant if new issues of Spider-Man and X-Men stopped coming out.

Yes, the Big Two account for the vast majority of monthly sales in America. Outside of the comic book business, their characters and stories define what a comic book is. If they stopped publishing, distributors like Diamond and retailers in the direct market would have to rapidly adjust if they were going to survive.

But that has nothing to do with independent comics as a worthwhile endeavor.

This was my response to the young man. Please let me know if you agree:

A: I highly doubt Marvel is shutting down it's publishing business, but if you want to publish your own comics, then it doesn't matter if Marvel shuts down or not.


You'll still have stories to tell. There will still be people who want to read the type of story you're telling. There will still be ways to get your story to your readers and get paid for it.

If Marvel stops publishing, the industry will go through a major change, but you should keep publishing your comics either way.

Have fun

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.


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 ATTORNEY OR CONTACT C3 AT gamalhennessy@gmail.com FOR A FREE CONSULTATION.

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.   

Do We Have Too Much Comics Based Entertainment?

Added on by Gamal Hennessy.

by Gamal Hennessy

Last week had two milestones in comics based transmedia entertainment. Batman v Superman broke records for both highest opening film in the genre and fastest decline in weekend revenues. Along with crossovers from the Flash and Supergirl TV series, the recent success of Deadpool, Daredevil and Gotham, as well as the much anticipated Civil War, Suicide Squad and Doctor Strange films later this year and the industry appears to be firing on all cylinders.   

But not everyone sees a bright future for the art form. Some critics from the Washington Post contend that the revenue cycle of the latest Batman film is a sign that the genre is running out of creative and financial appeal. Is this accurate? Where does it end for this style of entertainment, and what does this new world mean for the creators of this work?

The Reality TV Connection

Consider the recent past, before the current “golden age” of television with Game of Thrones, Mad Men and Breaking Bad 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 network. For all intents and purposes it abandoned music videos altogether.

But at a certain point, it was all too much. The industry couldn’t absorb another Real Housewives or singing competition show. The genre shrunk to a handful of shows that gets smaller every year.

The Tail That Wags the Dog

Now 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 categories 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.

More or Less

But how far can this momentum take us? Is there a connection between the fall of reality TV and the coming implosion of transmedia in comics? 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” actors or 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.

So maybe the question isn’t ‘Will this genre collapse?’ There might be an opportunity for comic based transmedia to expand instead of contract.

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

  1. 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
  2. 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
  3. 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 transmedia 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 LICENSING OR INTELLECTUAL PROPERTY ISSUE, DISCUSS IT WITH YOUR LEGAL ADVISOR OR CONTACT C3 AT gamalhennessy@gmail.com FOR A FREE CONSULTATION.

What the Valiant Movie Deal Means for Comics, Movies and You

Added on by Gamal Hennessy.

By Gamal Hennessy

One of the bigger pieces of entertainment industry news this week focused on the deal between Valiant Comics and a Chinese based company called DMG. The details of the deal haven’t been made clear, but the initial reports suggest DMG has pledged to invest “a nine figure sum” in creating a film and TV universe for Valiant properties. (See Valiant Entertainment Gets Nine Figure Funding for Movie Division)

Paying the Money

In any licensing or production deal, there are at least two sides to the story. On one hand, you have DMG who appears to be trying to get a slice of the lucrative shared universe pie, but it is hard to understand their motives at this point. Why would a Chinese company, with access to potentially billions of creative minds invest so much effort into intellectual property with limited cache? Why not create an original shared universe with less baggage, complications and cost? I understand properties like Iron Man and Guardians of the Galaxy didn’t have mainstream cache before their films came out, but Marvel focused on those properties because they already owned the rights to them. They didn’t have to shell out big money to a third party and then dump more money into bringing them to the big screen. DMG appears to have overpaid to join the connected universe wars.

It could be DMG is using Valiant as a future landing spot for talent it plans to lure away from Disney/Marvel and Warner/DC. Once the established creators see a former minor player as a new deep pocket, they might be willing to jump at the chance to join Valiant’s roster. A move along those lines could shift the balance of power away from Marvel’s dominance in film and DC’s leadership on TV and make the entire industry more competitive.

Getting the Money

No matter what DMG plans to do, the other side of the story is the important piece for producers, writers and creative people of all types. This deal, to the extent it comes to fruition, elevates an unknown independent comic publisher into an international entertainment force. But this transformation didn’t happen overnight. Valiant has been publishing since 1989. Its titles and roster have changed over the years, but their story is a classic example of three concepts I tell all my clients:

Of course, the DMG/ Valiant deal could be a complete disaster. It might be the beginning of the end of the golden age of comic book based entertainment (See Can We Have Too Many Comic Book Movies?) But I don’t think so. Film, television, books and interactive media can all share in the windfall of increased interest in new properties. You can get a piece of the pie too, but only if you’re rights are protected.

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.

Your Exclusive Engagement

Added on by Gamal Hennessy.

 

By Gamal Hennessy

Many people don’t read the contracts they sign. Even fewer people read the “boilerplate” language often found at the end of the agreement. People want to know things like when they’ll get paid, how much they’ll get paid, and what they have to do to get paid. Avoiding so-called “boilerplate” might be a natural response to getting a contract, but the clauses at the end of an agreement have a significant effect on, and could completely alter where and how the money flows.

Over the next few weeks, I plan to shed some light on typical boilerplate clauses in entertainment contracts. This isn’t going to be a definitive treatise on legal concepts or the final word on the current status of contract provisions. This also isn’t going to be a replacement for actual legal advice about your specific contract. My goal here is to help artists, writers and other creative people become better informed about various aspects of contracts they might be confronted with.

 In this second installment, we look at the concept of exclusivity.

The word “exclusive” is often used in entertainment marketing to trumpet some special event or limited time offer. We hear about exclusive engagements in theaters, exclusive releases in video games and exclusive production deals in film and television. While the word designates a special event in ad copy, the term exclusive has even more impact when it comes to creative contracts. The restrictions and the costs of exclusivity are important considerations for any artistic professional.

Concept

Exclusivity is a concept modifying a grant of rights or access to goods and services. You are in essence, excluding everyone else from the right, good or service. The opposite of exclusive is non-exclusive.

The easiest real world example I can offer is a car vs. a cab. When you buy a car, you and the people you designate are the only people who can use the vehicle, until it is repossessed, stolen or destroyed. When you hail a cab, you can use the vehicle for a little while, but before you got in and after you get out anyone can use that vehicle, assuming the cabbie will stop for them.

The entertainment industry is filled with examples of exclusivity. When I worked at Marvel, we often signed A-List writers and artists to exclusive deals to keep them from working with DC. Film distribution companies always push for exclusive domestic distribution rights to a film. Publishers can obtain exclusive rights to an image used in a cover. An actor or director could be retained on an exclusive basis for a period of time for a particular project. Almost every avenue of entertainment and media has some relationship with exclusivity, so understanding its impact is important to everyone.

Economic Impact

In any exclusive agreement, there are at least two parties who need to deal with the scope and the cost of the contract: at least one side gives exclusive rights and at least one side gets them. The side you’re on dictates what your goals and obstacles are and how you can massage them in your favor.

The person or company giving away exclusivity limits their ability to generate revenue based on the rights granted. For example, if you release a book through Amazon’s KDP select program, you can’t publish the book on any other platform for at least 90 days. Likewise, a screenwriter who has an exclusive deal with a production company gives up the ability to generate multiple streams of revenue by writing for other artists. Parties in this position naturally try to charge more to get into an exclusive deal to cover the lost revenue streams. At the same time, they try to limit the length or term of the exclusivity to reduce the financial impact of the arrangement (See Eternity is a Long Time in Creative Contracts)

The person or company getting exclusivity limits competition in the market. If only one company can show a movie, release a game or throw a concert, that entertainment is perceived as more valuable because of its scarcity. Exclusivity doesn’t always work directly. In video games, an exclusive PS4 title still sells at the same price as a multi-platform game, but if the system has more high-quality exclusives compared to the competition, the value of the PS4 system increases, not just the value of the game. To maximize the benefits of an exclusive, the side who gets it often tries to keep their rights forever.

The Shell Game

Like most legal concepts in contracts, there are situations where the impact of a word changed its initial meaning. Under certain circumstances, the grant of an exclusive license in certain media can amount to a change in overall ownership and control, especially if the rights granted are broad and the term is forever. For example, I’ve reviewed graphic novel licenses for my clients where the publishers wanted exclusive print publishing, film, television, video game, internet, stage play and other rights everywhere, forever, amen. In this case, a simple deal for print publishing is an attempt to tie up the property in every conceivable form. I try to advise my clients to avoid these types of deals, especially when there is no compensation. (See Get What You Give: Rights and Revenue for Creators)

Even parties who get exclusive rights need to be careful, especially when services are involved. Hiring an independent contractor is easier from a legal perspective than hiring an employee, but getting the exclusive rights to a person’s services might change your legal relationship with them depending on the nature of your working relationship. Producers in film, television, music and even publishing should be familiar with their state’s labor laws and withholding requirements whenever they consider bringing in exclusive talent, or they could find themselves on the hook for several unforeseen costs.

Exclusivity is a powerful aspect of entertainment law. Like fire, nuclear energy and love, it should be handled carefully to make sure no one gets hurt.

Have fun.

Gamal

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.

Is the New Marvel Universe a Secret War on Fox Super Hero Films?

Added on by Gamal Hennessy.

 

by Gamal Hennessy

In the comics industry, the death and resurrection of characters is a fairly common occurrence. Marvel killed Wolverine a few months ago and ended Fantastic Four as an ongoing series a couple months later. DC recently killed Robin and we’re now in his rebirth phase. The death of characters is an accepted element of post-industrial mythology and the business of creativity.  Every so often, something has to be taken away so it can come back with renewed energy.

Killing a comic character is common, but Marvel is doing something a bit more daring with today’s announcement of Secret Wars (See The Marvel Universe is Ending). In essence, Marvel is dismantling all of its various continuities to create a single overarching narrative. This event appears to be in the same creative vein as other universe destroying events like Crisis on Infinite Earths, Heroes Reborn and the New 52. Rather than shake things up with a reimagined world like the Ultimate Universe I saw launch when I was at Marvel, the stakes are being raised, or at least the goal posts are being moved.

But how much of this is the product of business as opposed to art? There’s already been plenty of speculation about the impact Marvel’s recent creative moves in comics will have on the superhero movie industry. Marvel has poured more creative and marketing energy towards the movie properties it owns (Avengers, Guardians, etc.) and has downplayed, muddled or destroyed  properties licensed out to other studios (X-Men, Spider-Man, Punisher). Conspiracy theorists suggest Marvel of using the tail to help wag the dog.

If the comics are the root of the money making movie tree, killing the root might weaken the tree. When any licensed product becomes more trouble than its worth, a movie studio might decide they’re better off giving up the rights. When Marvel reacquired the movie rights to titles like Daredevil and Hulk, the conspiracy theorists saw this as a Marvel’s success. The recent rumors of Spider-Man appearing in the Civil War film also fuels the conspiracy fire. The death of Wolverine and the cancelation of Fantastic Four could be considered a more aggressive move, designed to lower the potential success of the upcoming films, assuming other factors remain constant.

So what will the industry impact be of reconfiguring the entire Marvel mythology? It could be nothing or it may be everything. It all depends on which titles and characters emerge from Secret Wars. If most (or none) of the Fox or Sony characters survive the slaughter, I’d say there was a strong case for the conspiracy theory. But I doubt Marvel will be so blatant. A lot of factors go into the success or failure of a film franchise. Killing off a character in the comics isn’t a magic bullet, Kryptonite or a mystic hammer, but it can provide insight into the mind of the character’s owner.

The insight independent creators should have for their own characters is the same no matter how Secret Wars plays out. You need to treat your characters and stories as business assets. Make your decisions and focus your energy on the properties that work for you. If they don’t, consider shaking things up, even if some of your babies have to die. (See Treat Your Art Like an Investment)

Have fun.
Gamal

Will You Accept Your Assignment?

Added on by Gamal Hennessy.

By Gamal Hennessy

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.

Musical Chairs

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.

Have fun.

G

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.