Your Contract Attorney

Filtering by Tag: work for hire agreements

A Simple Guide to Work for Hire Agreements

Added on by Gamal Hennessy.

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.


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.

 

Silence May Not Be Golden for Freelance Comic Creators

Added on by Gamal Hennessy.

Companies are trying to prevent freelancers who work for them from disclosing what they get paid. This creates an advantage for the publishers , but it is dangerous for freelancers who lack the information to negotiate their deals in a thoughtful manner

Read More

Can Freelance Comic Creators Form a Union?

Added on by Gamal Hennessy.

Unionization among comic creators isn’t impossible or is ultimately bad for the industry. But until the obstacles are overcome, freelance creators need to negotiate the best contracts they can and be flexible enough to withstand the rapid changes inherent to the industry. 

Read More

Fighting the Demons of Independent Comics Publishing

Added on by Gamal Hennessy.

Publishing your own comics, like any type of independent creative endeavor, can be an exciting journey of achievement. It can also be a descent into poor health, isolation, and financial stress. Creators who can balance the love for their book with their long term well being have a better chance of enjoying the experience

Jessica Bruder wrote a thoughtful piece in Inc. Magazine called "The Psychological Price of Entrepreneurship." While publishing an independent comic isn't the same as launching a Fortune 500 company, there are simple lessons in this post creators can learn like:

  • Make time for friends and family

  • Ask for help if depression or hopelessness sets in

  • Take care of your body (sleep, exercise, etc.)

  • Don't bankrupt yourself to make your book

  • Don't define yourself only by your book

Publishing independent comics can feel like being a superhero with a secret identity. Both your passion project and your alter ego need to be protected. Neglecting either one can create an imbalance that destroys both.

 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.

 

You Need Two Teams to Publish a Successful Comic

Added on by Gamal Hennessy.

By Gamal Hennessy

I’m in the process of writing a book about the business and legal aspects of making independent comics (See Your Career in Comics). As the book develops, I plan to share parts of it here for your reaction and feedback.

About a month ago, I began the process by asking why you want to make comics in the first place (See What Are You Trying to Do?). Now I’d like to look at who you need to have on your team to have a successful publishing program.

One Book, Two Teams

Independent comic creators often put a lot of time and effort into building the team for their books. They reach out to friends in their circles who make comics. They visit artist’s alley in conventions, pour over Deviant Art pages, explore the overseas options, and ask for referrals on social media. Sometimes, it takes years for them to find the right artists for their project.

But too many creators start their book with only half a team.

If comics are a form of commercial art, then the development of the art requires both business and creative support. Focusing on only one side limits the potential of the project.

The Creative Team

            This side of the equation is basic to the creation of any comic. As with plays, films, and television shows, one or more individuals come together to turn a vision into a reality. Some roles overlap, but the common structure of a comic book creative team includes:

  1. The writer who creates the overall plot of the book and the script in both the caption boxes and the character dialogue.

  2. The artist creates the fundamental images on each page. They may also create the basic character designs, settings, logos and the cover for the overall book

  3. The inker enhances the images created by the artist, altering the tone and weight of the story by emphasizing some visual aspects over others.

  4. The letterer inserts all the words in the book including dialogue, captions and “sound effects” in a way that guides the reader’s eye in a natural progression from one image to another.

  5. The flatter prepares the inked images for the colorist to enhance the color rendering process.

  6. The colorist adds moods, energy, and texture to the images to give them more impact to the eye

  7. The editor oversees the entire process to ensure that the best possible finished product is created on time and under budget.

The Business Team

The creative side of comics is intense and time-consuming, but it is only part of the process. Professional comic creators publish books with one of the goals being the creation of profit. Without someone (and more often several people) running the business side of things, even the best comics will not sell. The elements of the business team vary from book to book, but every book needs to answer these questions as part of the process:

  1. Accounting: Who is collecting the money? Who is paying the bills?

  2. Advertising: Who is in charge of informing the public about the book?

  3. Distribution: Who is handling the relationships with Diamond and the direct market shops for the print book? Who is in charge of managing the online distribution on the website, Comixology, and the emerging distribution channels?

  4. Legal: Who is protecting the intellectual property of the book? Who is handling the internal and external contract negotiations?

  5. Management: Who is in charge of the overall creative and financial success of the book?

  6. Marketing: Who is in charge of creating the website, maintaining the social media presence, running the crowdfunding campaign, and handling the interactions with the comic book press,

  7. Printing: Who is in charge of managing the printing process? (If the book is being printed)

  8. Sales: Who is in charge of using the book to generate money?

Juggling Jobs

Every independent comic does not have fifteen people working on it. Some established publishing companies don’t have fifteen people working on the books. Creating independent comics is a startup experience. It means members of the creative team often take roles in the business team. It can mean members of the business team can fulfill multiple roles within that team. It also means that some jobs will not be done, or they won’t be done with the same time and attention as if someone only worked on that piece of the project. Some creators decide to give up some of their rights and sign up with creator-driven publishers like Image or AfterShock to take advantage of their pre-existing business teams.

As a comic creator, you have the power to decide which aspects of the process will and won’t get done. This power works better when you make conscious decisions at the outset of the project. It does you no good to spend two years making a book to sell and then realizing no one is prepared to sell it or collect the money.

The Cost of Teamwork

No matter how you decide to divide the tasks of publishing your comic, everyone who works on the book is going to have to be compensated at some point. Very few people are willing to work for free, even on something they love, so part of independent publishing is finding a way to pay everyone involved.

There are several different compensation methods available depending on the level of participation of each person, your resources, and the short and long-term interests of everyone involved. Increased involvement often includes increased compensation. Different compensation can be mixed and matched to give each person both a short and long-term stake in the project. Just don’t give away more than you have.

Compensation methods include:

  1. Upfront payment

  2. Revenue sharing based on units sold, ad revenue generated, sponsorships, etc.

  3. Ownership interests in the underlying property

  4. Credit on the underlying work

Better Odds

When creating a comic, the chances of success are greater if all jobs are assigned, everyone agrees on the terms, and the schedules for production, marketing, sales, and payment are established before making the book. All this preparation does not guarantee a hit book. The Big Two have dozens of people involved in each book and some of them still fail. But publishing comics involves a lot of individual tasks to make the machine run. If some tasks don’t get done on the business or creative side, then the machine breaks down fast.

Next month I’ll talk about creating a term sheet for the members of your team and the relationship between the term sheet and the contract.

Have fun with your comic...

Gamal  

PLEASE NOTE: THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. IF YOU HAVE A ISSUE WITH YOUR COMIC PROPERTY, DISCUSS IT WITH YOUR LEGAL ADVISOR OR CONTACT C3 AT gamalhennessy@gmail.com FOR A FREE CONSULTATION.