Professional Comics Creator for January 2021 (Looking Back on 2020)

This month’s newsletter looks back at the ups and downs of the comics industry in 2020, as well as some enduring truths creators and publishers can internalize.

Major Stories of 2020

(ICV2)

“Here are some of the big stories.  Most, but not all, are related to the Big Germ.  And believe it or not, a few point to signs of hope for a better 2021.”

How the Comics Industry Avoided an Implosion

(The Hollywood Reporter)

"While publishers and stores feared COVID-19 would be an extinction-level threat, the industry has proved more resilient than thought."

We Need to Treat Artists as Workers, Not Decorations

(Literary Hub)

“Art may occupy the realm of the spirit, but artists do not. They have bodies as well as souls, and bodies make their gross demands. In plainer language, artists have to eat.

A Wave Blue World Debuts a New Model for Publishing Comics

(Publisher’s Weekly)

Can a print/ digital hybrid model bridge the gap between comic shops and online stores? AWBW is trying to find out.

A Simple Guide to the Artist Collaboration Agreement

(Creative Contract Consulting)

“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.”

Have fun with your comic.

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 A QUALIFIED CONTRACT ATTORNEY OR CONTACT C3 FOR A FREE CONSULTATION

A Simple Guide to Getting Paid in Comic Book Collaboration Contracts

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 how to pay the people who collaborate on your comic. While this can’t be used as legal advice, I hope you’ll find it helpful.

After ownership of the intellectual property, getting paid (or consideration as it’s referred to by contract attorneys) might be the most negotiated aspect of collaboration agreements. You need to pay each collaborator the right way, depending on the deal you’ve created with them. We’ve touched on both basic contract language (See A Simple Guide to Understanding Creative Contracts) and collaboration agreements (See A Simple Guide to Artist Collaboration Agreements). Now we need to take a closer look at the consideration in collaboration agreements.

Can Exposure Be a Form of Consideration?

Like many small business owners, independent comic book publishers try to keep costs low. One method that persists in this and many creative industries is offering “exposure” to creative talent instead of actual consideration.

While there will always be eager novice artists and writers willing to accept this professional abuse, but before we explore legitimate forms of consideration, I’m going to try and explain why you shouldn’t make “exposure” a part of your pitch to talent at any time.

“Exposure” is based upon a hypothetical, best case scenario. The publisher has an idea that is a “guaranteed” success. Anyone associated with this amazing book will become famous, because the book will be famous. Then, other publishers and creators will then seek out talent from this book to use in their own projects, and will pay substantial amounts for the privilege. In essence, talent gives up money now for a chance to “get their name out there” and achieve fame and fortune later.

This scenario falls apart upon casual inspection.

First, there are no guaranteed successful ideas in comics or any other form of entertainment. Second, there is no tangible assurance that the work done for exposure will ever lead to later paid work, even if the book is a hit. Third, in the 21st century, every artist, writer and creative profession market themselves using social media. Finally, the talent has financial obligations they are trying to fulfill with their creative work. There is no reason or incentive for comic book creators to spend their limited time and resources on the illusion of exposure.

Keep in mind, there is a related form of consideration called credit, which does have secondary value to comic book creators. Industry leaders like Jim Lee, Todd McFarlane, Frank Miller, and Mark Millar all leveraged their work for the Big Two into fame and success in their own projects. But the credit came in addition to the page rates and other forms of consideration, not as payment on its own.

Paying talent can be one of the biggest drains on your financial investment, but your professional reputation and the success of your book will suffer if you attempt to get people to work for free. Exposure by itself is not consideration. You need to offer something more.

What Forms of Consideration Are Used in Collaboration Agreements?

Because creators who sign a collaboration agreement own a portion of the underlying property, there are four major types of consideration they can get, based on the deal negotiated between the parties. 

1. Intellectual Property Ownership: Collaborators share in the copyrights and/or trademarks associated with the project. This could mean that they get a portion of the revenue generated by uses of the IP not directly related to the publishing, such as the film, TV and merchandise. This also means they can have authority over how the IP is developed and how it can and can’t be used.

   Please note that there is a mathematical limit to IP ownership. You can’t offer more than 100% of the property, so pay attention and don’t try and give away 130% of your book to various members of the team.

2. Credit: As I mentioned earlier, collaborators can get their name on the book and associated properties, as is customary in the industry (i.e. on the cover, in associated advertising and social media.) which can bolster their professional reputation over time.

3. Revenue sharing:  Collaborators can share in the success of the book by dividing profits between them. For example, if the writer and the artist collaborate on a book that generates $5,000 in sales, and they agreed to split the money evenly, each of them can walk away with $2,500, depending on how revenue is defined.  Again, you can’t offer more than 100% of the revenue, so be sure to check your math.

4. Upfront payment: Collaborators can negotiate terms where they get a portion of the investment prior to the collection of revenue in exchange for less initial money when the book starts generating sales. For example, if a writer took $2,000 as his overall page rate in our example above, he wouldn’t be able to collect any royalties until the book recovered his page rate from sales.

5. Copies of the final product: If you are going to distribute your project in digital or print format, one form of consideration is a specific number of free copies of the book. You can also consider giving talent the opportunity to buy additional copies at a discount so they can either give them away as promotional items or sell them on their own. If you decide to use this form of consideration, just be sure to factor this into your print runs. If you have a large team or you offer a large number of copies to each person, you could be cutting too deep into your revenue.

How Is Revenue Defined?

Collaborators who decide to share revenue need to be very specific about the definition of revenue if they want to avoid financial disputes (See Your Slice of the Pie). In general, revenue is defined as the income generated from the sale of goods or services. For your project, revenue can come from advertising, books sales or licensing of the IP. But all revenue is not created equal. Gross revenue is all of the money collected from the exploitation of the IP. Net revenue is gross revenue minus expenses related to the goods and services being provided.

Let’s go back to our earlier example to understand the difference between gross and net. If the collaborators made $5,000 in sales from their book and the revenue split is defined as 50% of the gross revenue, then each collaborator is entitled to $2,500. But, if the book cost them $4,000 to produce, print, and ship, then the net revenue is $1,000 ($5,000 - $4,000) and they each are entitled to $500. If the book cost $10,000 to produce, then there is a loss of $5,000 that the collaborators could deduct from their personal income depending on how the underlying business is set up. The majority of collaboration agreements use the net revenue definition, especially when the initial investment doesn’t cover production and distribution, but talk to your accountant to determine how the losses from a business apply to you.

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 Rejecting a Bad Artist 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 rejecting a contract. 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 contract with each creator (See A Simple Guide to Contract Negotiation).

Even if you do everything professionally and negotiate in good faith, you may fail to reach an agreement with your potential business partner. As Jean-Luc Picard once said on Star Trek “It is possible to commit no mistakes and still lose. That is not weakness. That is life.” If and when this occurs, you need to make a graceful exit. This post offers some tips on how to walk away with your reputation and your dignity intact.

Rejecting a bad contract makes good business sense, especially if your options are better than the deal on the table and there is no room or interest in further negotiations (See A Simple Guide to Contract Negotiation). But there is a right way and a wrong way to turn down a deal. Both sides can maintain their professional relationship and keep the lines of potential communication open if you follow these five steps:

1. Articulate your intentions: It does you no good to start working on a deal and then never respond to them if you decide you can’t sign it. You are better off notifying the other side that you appreciate their interest, but you can’t move forward with the terms they propose.

2. Blame your lawyer: In most instances, the person you’re dealing with will ask what the problem is with the contract. This is the perfect time to throw your lawyer under the bus. People hate lawyers more than zombies, spam, and zombie spam, so hiding behind us can’t make our reputation any worse. It can give both of you a convenient scapegoat so you can walk away from the deal without any negative feelings between you.

3. Try one last attempt at negotiations: Maybe you can’t sign the current deal, but that doesn’t mean you can’t do business with them. They might be open to a different type of deal or alternative terms to the same deal. (See A Simple Guide to Contract Negotiation). Many of these proposed alternatives won’t pan out, but you’ll never be able to explore the possibilities if you don’t ask the question.

4. Leave with dignity: Comics is a small business. The minor person you deal with today might be the head of Marvel tomorrow. The hot new artist this year could find himself without a deal next year. Don’t have a fit, throw a tantrum or make threats just because you don’t want to sign a bad deal. Don’t do it in person. Don’t do it over the phone. Please don’t email it and for the love of everything don’t do it on Twitter. Just don’t do it. Thank them for their time, express your hopes for working with them in the future and walk away.

5. Go Back to Work: One failed deal isn’t the end of your career, especially if you didn’t sign it. You need to go back to your craft, keep pushing your work into the world and try and find the next deal. If one person was willing to take a chance on you, there could be others. But you can’t find them if you don’t look.

Signing the wrong deal can cost you thousands of dollars and control of your art. Rejecting the wrong deal the wrong way can cost you your reputation in the industry and the opportunity to work with someone else in the future. Stay friendly and professional and you can turn a bad contract into a learning experience.

Just remember to blame your lawyer for everything

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 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

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.

Four Tips for Writing Your Comic

By Gamal Hennessy

Being a comic writer has more in common with being a screenwriter than a novelist or a playwright. There needs to be a visual aspect to the writing and a certain willingness to surrender your story to another artist and trust them to deliver the finished product to the public.

There have been more than a few books about writing for comics, like Alan Moore's Writing for Comics, Words for Pictures and others listed in my recent post on comic creation books. Rachel Gluckstern recently distilled her own version of the comic writing craft into four handy tips to help get you on the same page as your artist so you can create your masterpiece.

Just remember to have a contract in place for every book you write. You don't want your masterpiece to make someone else rich.

Click Here to Read So You Want to Write a Comic Book

Have Fun.

Gamal Hennessy

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

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

All for One and One for All: Artist Collaboration Agreements

by Gamal Hennessy

Most of the contracts I deal with are between an artists and publishers. I take the publisher’s standard contract and explain it to the artist in language they can understand so they know what they are getting into, for better or worse. What clients don't normally ask me to do is create agreements between the artists working together on a project to define their relationship with each other. What they often don't realize is that this type of contract is just as important as the one between the artist and the publisher. Without this type of agreement an otherwise successful partnership can lead to misunderstandings, conflict and disputes down the road that can be just as costly as any disagreement with a publisher.

Keeping the band together

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

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.  That is where the collaboration agreement comes in.

Putting the ducks in a row

A well drafted collaboration contract contains six elements:

1. Who is responsible for creating each element of the property
2. How is the copyright for the property going to be distributed between each creator
3. How will the revenue be distributed between each creator
4. Who has decision making authority for the property
5. Who is the primary contact for the property
6. What happens when someone leaves the creative team

While the contract can be overly complex with just these elements, the best ones address these issues without a large amount of legal gymnastics. At the same time the elements of a collaboration agreement should not conflict with the terms of any agreement with a third party publisher or licensee of the property. Your legal advisor can review both contracts to ensure there is harmony between them.

Other options

Of course, there are cases where only one or two of the artists on a project will actually own the copyright and the other participants may participate on a work for hire basis. Also there are some instances where the creative team actually forms a separate company to manage and exploit the property. In those cases, as with the collaboration agreement described here, a contract should be in place before any work is done to protect the rights of each artist in relation to each other as well as to a publisher.

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 ATgamalhennessy@gmail.com FOR A FREE CONSULTATION.