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 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.