Your Contract Attorney

Filtering by Category: "understanding contracts"

What Message Should You Take from the GoG Success?

Added on by Gamal Hennessy.

At this point, the internet is saturated with reaction from the monster opening weekend of Guardians of the Galaxy (See Guardians Sets New August Record). Some see this as a new plateau in the golden age of comic book movies (See Films Based on Comics are Serious Business). Others assume saturation is just around the corner. Either one of those perspectives could be accurate. In certain ways, they’re probably both right. But as writers and artists, what should you take away from the breakout success of the latest Marvel film?


Answer: You never know which property is going to be successful and you never know when.


Consider the doubt many people expressed leading up to the release of GoG (See Guardians Will Be a Flop). A film based on a group of unknown characters created in 1969 and only loosely linked to the Avengers franchise didn’t have the established mainstream fan base widespread support of Spider-Man, Batman or even Hulk. I think quite a few people saw the “inevitable” failure of GoG as the beginning of the end of the comics based movie era, especially in the light of disappointments like Green Lantern, Amazing Spider-Man 2 and The Wolverine. But when an obscure property makes $94,000,000 in its first four days of release, people take notice. When a film opens as a historic success, as part of a string of top grossing film and merchandise campaigns, the potential of comic based entertainment can’t be ignored.


All this means you can’t afford to ignore the legal status of your property either.


  • Yes you might be working on your first self-published book.
  • Yes, you might still be looking for a creator owned deal.
  • Yes, the vast majority of comics will not become movies or TV series or anything else.
  • Yes, it might take decades before Hollywood (or in the future Amazon, Netflix or its successors) stumbled upon your little book.


Even if all of this is true, can you afford to be cut off from ownership and potential future earnings? In his new book Words for Pictures, Bendis suggests you treat your story like it’s going to be the next big thing when it comes to dealing with your contract. It might be optimistic to the point of being delusional, but it is still sound advice for anyone in comics, even if your book doesn’t have a talking raccoon character.


Have fun.
Gamal

Why Comic Creators Need Lawyers

Added on by Gamal Hennessy.
Technology has given independent artists the tools and freedom to control more of their work. It is easier than ever to create, publish and distribute your stories without a deal from the big boys. This evolution in the industry gives you more chances to get your work in front of bigger players, and gives you the potential to make deals that were few and far between a few years ago.

But this DIY spirit can be dangerous if taken too far. There is a point where it is helpful, even preferable, to do things on your own. When it comes to legal agreements involving your intellectual property, you need the support of a professional.

Disclaimer
You’ve probably already came to the conclusion that I'm only writing this post to get more work. After all, I am an attorney who represents comic creators. (See An Introduction to Creative Contract Consulting). If I scare you into thinking that you'll be cast off into the Negative Zone if you don't get a lawyer, then there's a good chance you'll hire me. To a certain extent, that's true. But there are three points to keep in mind before you dismiss me out of hand:

So as self-serving as this post might be, that doesn't mean it doesn't make a point that can help you.

Division of Labor
The reason you need a lawyer to help protect your rights is because legal contracts and legal principles are designed to be confusing.  The language used in contracts is circular, opaque and dense. What the words mean and what you think they mean are often two different things. The implications of certain words are often unclear even to the person who wrote the contract. Without someone there to explain things to you, it is easy to sign something that will hurt you down the line.

This is not an attack on your intelligence.  Many of my clients are a lot smarter than me. This is a question of training and experience. I’m a writer as well as an attorney (See Smooth Operator). I don't edit my novels and I don't design the covers. I hire professionals to do that. (See Judging a Book by its Cover) As an airline passenger, I don't fly my own plane. I pay the airline to supply professionals. I could learn editing, cover design and piloting, but it saves time and money to bring in a professional.

Hiring a lawyer is the same. We already wasted years of our lives and hundreds of thousands of dollars learning to decipher contracts. Why not take advantage of our poor decisions?

A Word about Costs
Lawyers are not cheap. We have to pay off exorbitant loans and many of us have expensive tastes. We normally charge by the hour, so the best way to use a lawyer is to hire one for as short a period of time as possible. If you hire them before a deal gets signed, it might cost you a few hundred bucks. If you hire one after something goes wrong and you need to go to court, that number can rise exponentially. Court cases can take years and those billable hours pile up fast. It's better to bring us in on the front end and nip the issue in the bud.

Somebody, but not just Anybody
I understand if you don't want to hire me. You might not like my style. I might not be attractive enough to be your lawyer. That's fine. I've been rejected before. All I ask is that if you're faced with a contract that involves you or your work, get a lawyer to review it before you sign it. And not just any lawyer. A criminal defense attorney might not understand the entertainment or comics market well enough to help you. Check the background of your prospective attorney, talk to your colleagues about who they use. Once you find the right one and you determine they have an acceptable level of attractiveness, retain them and put them to work. That will give you the time and the peace of mind to go back to making comics.


Have fun.
Gamal

Deal with the Devil (How Comic Creators Get Their Rights Stolen)

Added on by Gamal Hennessy.

When I started consulting private clients about licensing issues (See Client List), I thought it was going to be a low impact, secondary service. I planned to explain the finer details of contract language, so artists and writers could make informed decisions about selling the rights to their work. Now that I've been doing this for a few years, I can see that I was wrong. Some contracts that I've seen are prudent actions by publishers trying to protect their investment. But too many of these agreements are nothing more than blatant attempt to hijack intellectual property from unsuspecting artists.

The Double Edged Sword

Signing a contract with a publisher can start an artist down the road to professional recognition and lucrative opportunities far beyond comics. It can also strip you of everything you have worked so hard to create. There are a lot of potential pitfalls in creator owned contracts, but the major ones are:

Of course, not every contract is written this way. Not every publisher is a demon attempting to steal your life's work. Some relationships between creators and publishers are much more balanced and fair in reality than they appear in the contract. But the history of comics is littered with famous stories of iconic characters being given away by their creators for little or no money. The current litigation concerning Ghost Rider is simply the latest chapter in a long line of cases. But the answer isn't to avoid all contracts all the time. The key is to understand what you are signing and what you are and are not willing to give away.

Reality Check

It is obviously self-serving for me to make dire claims about the dangers of creator owned contracts. The more you are concerned about this legal problem, the more likely it is you will become my client and pay my fee. It is also clear that many creators feel compelled to sign away their ideas to get their foot into whatever door they have found into the ultra-competitive comic book industry (See David and Goliath: Negotiating Comic Contracts). Both of those concepts are true. I get it.

Here is my response to those facts; if you don't want to use me to review your contract, I respect that. By all means, use someone else with a background in contracts, IP or entertainment law, just don't do it yourself. This is not an insult to your intelligence or business savvy. It is recognition of your specialization. You are an artist or a writer. You probably didn't waste a lot of time in law school learning about contracts (if you did, sorry about the loans). It is unrealistic for you to be expected to understand the implications of contract language. Many of the most successful businessmen have several lawyers explaining things to them when they need to make a major decision. You should too.

And even if you do find yourself in a position where you “have to” sign a bad deal, do it with your eyes opened. Know what you are getting into, so you don't wake up one day without any claim or credit for what you worked so hard to create.

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.

Eternity is a Long Time: License Terms in Comics Contracts

Added on by Gamal Hennessy.
Western society is focused on the present. In business and in life, most of us are concerned with what's happening right now. Little thought is given to long term implications and outcomes. This can be a mistake, especially when it concerns your original stories and characters. A prudent creator will consider the length of time that their property is tied up when considering any deal.

How Long Is This Going to Take?
In the language of contracts, the Term is the length of time that a contract will be in effect. So if you license the publishing rights to the Greatest Comic Ever (GCE) for three years from the execution of the agreement, and the contract is signed on January 1, 2014, then the rights revert back to you on January 1, 2017.

In some cases, the starting and ending dates can be manipulated so that three years isn't really for three years. For example, if you license GCE for three years from the date of first publication of the book, you're looking at a longer deal, since GCE might not come out months or years after the contract is signed.

Forever and Ever, Amen
There are two types of terms in comic book contracts, finite and infinite. A finite contract has a term that lasts for a certain amount of defined time. Like the example above, the term could be months or years, but sooner or later, the rights revert back to you.

With an infinite term, there is no practical end to the license. You could die, humanity could be destroyed in the zombie apocalypse and the earth could be eaten by the sun, but as long as there are lawyers around the contract is still in effect. You can tell a license is infinite if the term contains words like perpetual or in perpetuity. Also, if you can't calculate when the term ends, there is a good chance that it never will.

There are also modifiers to standard term language that can make an infinite term look like a finite term. An in use license could be written so that as long as the licensee is actively using the license, then the license is still in effect. This is part of the difference between the X-Men and Daredevil movie franchises. Fox keeps actively making films with the X-Men universe, allowing it to keep the license. Daredevil reverted back to Marvel because Fox made no use of the license after the 2003 film.

An automatic renewal clause can be placed in term language so that the original term continues to restart as long as certain conditions are met. For example, I have seen publisher's contracts where the license term was valid as long as the book was in print. In today's world of internet comics, a book will always be in print if the book can still be downloaded, making a finite license infinite for that purpose.

Also, a license can convert from an exclusive license to a non-exclusive license (See Addition by Division: Separation of Licensing Rights for Creator Owned Deals) after the initial term ends. This can provide some protection for both parties upfront, but creates complications later on.

Think About the Future
Publishers have an inherent interest in holding rights for as long as possible for several reasons. First, it might take a considerable period of time before a property reaches its height of popularity. Wolverine has been a benchmark of popularity for the past ten years, but its celebrity status in comics has been solid for the past twenty years and it languished in relative obscurity for years after his first appearance in 1974. Second, IP assets, like characters are not perishable and they don't take up space. They are mental concepts that can be stockpiled at little cost. Finally, characters can prove to be powerful assets to whoever holds them whether the rights are resold as movies or games, or if the characters themselves used as assets to generate investment income.

The risk that a creator runs into in this scenario is signing away the rights to a Property for too long. What too long means will differ from one person to the next, but it is generally a mistake to sign away rights forever if the benefit you receive doesn't match what you're giving away (See Get What You Give: Rights and Revenue for Creators)

Not every Property is going to be as popular as Superman seventy five years after it is created. Your personal situation might prevent you from making demands about the length of your contract term (See David vs. Goliath: Negotiating Power in Comic Book Contracts). But anyone getting involved in a creator owned deal or some other type of licensing agreement should consider the length of the term in their contract term and strive to maintain some control of the property in the long run.

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 Slice of the Pie Part II: When Do You Get Paid?

Added on by Gamal Hennessy.
I haven't written anything about comics in a few weeks because I've been working on creating a independent artists merchandising platform (See Do You Want to Create Merchandise for Your Comics? ). I'm still testing the feasibility of that business, but I'd like to take a break from that and discuss the ways time impact a contract. This essay will focus on the most important short term impact; the time it takes for you to be paid.

Payment Timing

The most important thing to understand about working with a publisher is that payments are traditionally paid in lump sums at specific periods during the year. For instance, let's say your publisher reports sales on a quarterly basis (4 times per year) and pays royalties thirty days after each reporting period. Let's also assume that your new book hits the stores on January 1, 2014. This means that you'll see your first report on March 31st, 2014 (or the first business day after that) and the earliest that you'll see the first check is April 30, 2014. Payment cycles can be monthly, quarterly, bi-annually or annually. The rise of online sales can speed up the reporting process to almost real time, but the publisher might still delay payment for various financial reasons.

Not So Fast

Keep in mind, the earliest point where you might get paid won't always be the day you get the money. There are several factors that contibute to payment delays that have nothing to do with negative intentions from the publisher. A delay in payment can occur:

  • if the publisher pays you any advance prior to the release of the book (See Your Slice of the Pie Part I: Net and Gross Profit). In this case, you won't be paid until your percentage of royalties exceed the money you were given up front.
  • if the cost of producing the book and deducted from the gross sales exceed the actual sales, then you won't get paid until sales exceed costs (See Your Slice of the Pie Part I: Net and Gross Profit)
  • if the publisher only pays royalties after a certain threshold is reached (normally $50 or $100) then you won't be paid until the pay cycle where your share of the royalties crosses that threshold
Watching the Clock

When you are thinking about the practical effects of payment timing there are two things to keep in mind. First, don't expect to see immediate payment for a new book unless there was an advance up front. Very few independent artists rely on just creator owned book sales to make a living, but it's worth pointing out that you don't want to count on paying February's rent with the money from January's book sales. That money might not come until April or May. The solution to this is to supplement your creator owned income with work for hire gigs (See Entertainment Contracts 101: Creator Owned vs. Work for Hire) that at least in theory are paid much faster.

The other thing you want to avoid is forgetting about your royalties entirely. In some extreme cases (large deductions from gross, annual reporting and rolled over payments), years could pass before sales reach a point where you start to collect royalties. In the majority of cases, the publisher will just send you the money even if you don't keep track. This is a nice surprise (the industry equivalent of finding money in the pocket of an old coat) but you don't want to get into a situation where you forget and the publisher forgets and you never get paid for your work.

While I often advocate for creators to negotiate changes to their deals, payment timing is something you need to understand not try to negotiate. The payment systems of most publishers are tied to their accounting systems and their overall business operations. It is worth asking for a change if the publisher seems flexible, but unless you are Stan Lee most creators will not be in a position to get this change (See David vs. Goliath: Negotiating Power in Comic Contracts). The best option you have is to set up some kind of long term reminder of the payment terms of all your books at the beginning of the deal.

Now that we've explored the short term effects of time on creator owned deals, next week I plan to look at the long term effects of tying up intellectual properties and the not so philosophical concept of eternity in the comic book business.

If you have any questions, please feel free to ask.

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.

Catastrophe and Contracts (Understanding the “Act of God” Clause)

Added on by Gamal Hennessy.
Imagine you’re sitting at home one day, making comics and minding your own business. You are working at a steady pace and you plan on finishing long before your publisher’s deadline. All of a sudden, the sky goes dark, the wind begins to howl and the lights go out. A couple days later you have no power, no water, no heat and there is a tree in your living room. On top of all that, you missed your deadline and your publisher is claiming you breached the contract. Now what?

The answer to that question depends on the force majure or “act of God” clause in your contract. If the language is written well, you shouldn’t have a problem. If the language is written poorly (or doesn’t appear at all) you might have to deal with a business dispute at the worst possible time.

What does it mean? Basically, a force majure clause extends the period of performance for the artist and the publisher if certain events occur. Most force majure clauses include events like fire, natural disaster, accidents, act of government, war, terrorism, industry wide shortages or any other event beyond your control and that directly impact you. For example, if you live on the East Coast, Hurricane Sandy probably qualifies as a force majure. If you live in Seattle, it probably doesn’t because you are not directly impacted. Keep in mind that a hangover is not a force majure, even if it does feel like an act of God when you are recovering. Getting the hangover wasn’t beyond your control, so force majure can’t save you here.

What do you have to do? When a force majure event occurs, you usually have to notify the publisher of the event’s impact on you and then follow whatever terms are specified in the force majure clause. Terms can range from an extension of time to cancellation of the agreement. While it is impossible to anticipate every potential force majure event and write a solution into the contract, it is better to have some guidelines in place that work for both sides, instead of waiting until your basement is full of water and the National Guard comes rolling in.

Often, a publisher or colleague will understand your situation during a crisis and won’t try to use it as a way to avoid paying you or to get out of your contract. However, it is always prudent to make sure there is a good force majure clause in your contract when you sign it. You never know when the lights could go out and you never know when your relationship with your publisher could fall apart.

Best
Gamal Hennessy, Esq.

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.comFOR A FREE CONSULTATION.

Meet with Creative Contract Consulting at New York Comic Con

Added on by Gamal Hennessy.

I will be attending the New York Comic Con this year. If any artist, writer or comic professional would like to set up a meeting for business consultations or the inevitable drinking to discuss future projects, please contact me at gamalhennessy@gmail.com to set up a meeting.

I’ll see you on the Exhibition Floor.
Have fun.
Gamal Hennessy
Related Articles

Your Slice of the Pie Part 1 (Gross and Net Profit Concepts in Creator Owned Deals)

Added on by Gamal Hennessy.

A couple of weeks ago I introduced the different types of rights you could license as a creator and the different types of revenue you can get from a licensed work. In that post I hinted that there were specific concepts that impact how much you’re paid on any given deal. This post (and probably the next few posts) will go into more details about the economics of creator owned deals.

 

Types of Revenue

As a refresher from the earlier post, I need to point out that the various ways that creators are paid in creator owned deals. The three major ones are:

  • A royalty is a percentage that the artist earns for every finished unit that is sold. For example, an artist might receive 30% of every one of their comics that is sold to the public.

  • An advance is money that is paid before the work is finished. For example, a writer of a novel might receive money up for her novel based on the proposal not the finished product.

  • A minimum guarantee (MG) is money paid up before the work is finished, based on anticipated sales. For example, if a toy company plans to sell a new licensed toy for $10 and the creator gets 10% of that sale, then the creator gets $1 per unit sold. If the company expects to sell 100,000 units, then the MG that the artist gets for this deal is $100,000.

Definitions of Revenue

In general there are two ways that revenue is calculated for your royalty or minimum guarantee. There are gross profit and net profit.

  • Gross revenue or gross profits is the pure income that a product or service generates.

  • Net revenue or net profits is the income that a product or service minus certain expenses.

In the vast majority of cases, publishing deals are calculated by net revenue. The key for a creator is to know what is being included in the definition of net revenue and avoid situations where the expenses are always greater than the revenue generated.

Examples

Question: Let’s say you produced a comic called the Greatest Comic Ever (GCE for short). A publisher says they are willing to make a deal with you to publish GCE. They offer you 50% the wholesale profits as part of the deal. The comic sells for $2 wholesale. Is this a good deal?

Answer: That depends. The truth is there is no way for you to know if this is a good deal or not until you understand how the contract defines profit.

  • If the contract says you get 50% of the gross profits then you get $1 per book sold.

  • If the contract says you get 50% of the net profits then you have find out what is deducted from the gross to calculate the net.

The Net Revenue Trap

It is a fairly common business practice to deduct the cost of goods sold from the gross to determine the net. Cost of goods sold means whatever the publisher has to pay to produce and distribute your book. Those costs can include editing, printing, shipping, advertising, returns and a few other items. Most publishers track their costs in a document called a profit and loss sheet, so they know what percentage of every book goes into the cost of goods sold. Many publishers will list exactly what goes into the net calculations. This is helpful for figuring out where the money is going.

The problems occur when the creator has no idea what goes into the net calculations or the definition of net is so broad that it wipes out any potential profit for the creator. In the most unscrupulous contracts, the publisher will creatively expand the definition of net revenues to the point that the creator never gets any profit for his work even if it sells millions of copies. For example, if the wholesale price of GCE is $2 but the net deductions are $3 per book then the net profit is -$1 per book. That means you get $0 no matter how many copies the book.

Playing Your Position

It is unrealistic for an artist or creator to understand the nuances of licensing revenue, especially when they first enter the market. You need to focus on your craft and create the best property you can. You also need to have access to financial and legal professionals who can explain potential deals to you and allow you to make informed choices. That is why it pays to break down each contract and understand its implications before you move forward.

Next week, I’ll try to explain the concepts of recoupment and payment cycles to give you a better idea of when you can expect to get money from a deal.

Best

Gamal Hennessy

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.

Addition by Division (Separation of Licensing Rights for Creator Owned Deals)

Added on by Gamal Hennessy.
by Gamal Hennessy
Most of the contracts that my clients send me from publishers are fairly broad blanket licenses. Although the language of each one is different, it boils down to the same concept; the publisher looks for the artist to license all of the rights to all of their property in exchange for one fee. While this simplifies the contract for both parties, it also limits the earning potential for the creator by reducing the number of licenses his comic can exploit. A more experienced and profitable approach is to divide the property into as many licenses as possible to maximize the revenue and minimize the dependence on one licensing partner.
Separation of Power
As I discussed in an earlier post, creators can use the trademarks created from their work to license to product manufacturers. Instead of granting blanket rights to the publisher of the print comic, a more granular division of rights gives the creator more options and potentially more revenue. Licenses can be divided in the following manner:
  • Property: or what title or characters you are actually licensing. A license could be for all the characters and settings in a particular book, but it could also be limited to just one character or a group of characters or in some cases just a particular image from a particular book (like a cover image)
  • Licensed Good: or what you are permitting the licensee to create. You can be as specific as you like with the type of license you are providing. For instance you could grant a broad license for “clothing” or make it narrower by limiting it to “T-shirts”, “men’s T-shirts” or “men’s short sleeve cotton T-shirts”
  • Term: The time limit on how long the license will last. This is usually measured by years, but it could also be as short as a few months.
  • Territory: The geographic area that the license is limited to. This could be something as broad as a worldwide license, or it could be limited by countries (i.e. USA), groups of countries (NAFTA or the English speaking world) or continents (Europe)
  • Outlet: This is the type of venue that the licensed can be sold in during the term in the territory. It could be a broad concept like “retail outlets” or “online sales” or it could be a specific type of store (high end, mid market or discount chains)
For every license granted, there is a separate fee and a separate royalty for every item sold. There is also a separate negotiation for rights.
Example
Let’s suppose you have a popular title and you start negotiations with a clothing company to produce T-shirts with your main character. There are several approaches you can take including:

  1. You might have granted the merchandise rights to the publisher, which means you get a portion of what ever he reports to you for a deal you had little or no input on. 
  2. If you kept the rights for yourself, you could grant the T-shirt company a world wide perpetual T-shirt license for a $10,000 advance and an 8% royalty off the suggested retail price. 
  3. If you split the rights up, you could grant the T-shirt company a two year, US only, mass market T-shirt license for a $5,000 advance and an 8% royalty off the suggested retail price. You could then go to a Canadian company and do the same thing. And do it again with a European company, and an Asian company. Instead of one advance of $10,000 you could be looking at $20,000 in advances from four companies for the T-shirt rights alone. You could potentially have dozens of clothing, toy, game, poster and other licenses for your property with licensees all around the world that generate revenue that dwarfs what you make from the actual book, all because you separated the licenses to increase the revenue.
Enforcement
While it is a giddy thought to think that your character could be on licensed products from New York to Cairo to Hong Kong, keep in mind that there is significant work involved in keeping track of a vast licensing empire. You not only have to keep track of what license you granted to which company, you have to monitor each one to make sure they don’t violate the agreement. It is not easy to make sure your American licensee isn’t shipping goods to South America, selling them and then not reporting the sales to you or paying for them. It is even more difficult to monitor and keep track of counterfeit knock off goods in far flung countries that will reduce your revenue and dilute your license. The cost in time and money to manage a diversified licensing plan is huge, but think about it; if your book was that big wouldn’t it be worth it to manage and control the licensing program?
Negotiating Power
I have already pointed out that new artists are often not in a position to reject a blanket license and negotiate divided license rights. When you are trying to get enough money to pay your bills, you can’t worry about holding onto the bobble head doll rights for South East Asia. But if you want to make the most of your creator owned deals or you are in a position to choose between a partner who wants a blanket license versus one who is more flexible with the rights structure, you might be inclined towards addition by division.
Best
Gamal
See Also:
Please Note: I will be attending the New York Comic Con this year. If any artist, writer or comic professional would like to set up a meeting for business consultations or the inevitable drinking, please contact me at gamalhennessy@gmail.com to set up a meeting.
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.

Get What You Give (Rights and Revenue for Creators)

Added on by Gamal Hennessy.
A contract is basically an agreement between one or more groups for the exchange of resources. The exchange could be time and skill for money, goods for services, property for future gains or any combination of those things. The best agreements exchange roughly equal resources. The worst ones have one side trading large amounts of resources for little or nothing in return.
This is the problem that artists run into with many of the contracts that I see. The most important service I provide is showing my clients what they are giving up in comparison to what they are getting. I’d like to provide an overview of the different types of rights and revenue streams as a general overview for creators looking to get their projects into the market.
Types of Rights
As discussed before, copyright law gives the creator of an original work the right to benefit from the distribution of that work. There are various types of ways currently available for creators to exploit their work, especially when we consider comics. Some of the major distribution methods include:
  • Publishing (Print, novelization and Digital)
  • Public Display (gallery displays and public performances of some of the methods listed here)
  • Theatrical (Movies whether live action or animated)
  • Television (including network, basic cable, premium cable, PPV whether live action or animated)
  • Home Video (including DVD, Blu-Ray, etc.)
  • Live Performance (including Broadway performances and theme park performances)
  • Interactive (including console computer or mobile video games)
  • Audio (soundtracks and audio novelizations)
As new forms of distribution are created, new rights are created for the artists. These rights are universal, but they can be divided or carved out by geographic area, time frame, distribution channel, language and other factors. (This division can be complicated, so I’m going to save that for another post)
Types of revenue
Just as there are different rights that creators can use to get their work into the market, there are various ways that they can be paid. Creators need to focus on three ideas:
  • A royalty is a percentage that the artist earns for every finished unit that is sold. For example, an artist might receive 30% of every one of their comics that is sold to the public.
  • An advance is paid before the work is finished. For example, a writer of a novel might receive money up for her novel based on the proposal not the finished product.
  • A minimum guarantee (MG) is money paid up before the work is finished, based on anticipated sales. For example, if a toy company plans to sell a new licensed toy for $10 and the creator gets 10% of that sale, then the creator gets $1 per unit sold. If the company expects to sell 100,000 units, then the MG that the artist gets for this deal is $100,000.
These are broad revenue concepts. They are often altered and refined by concepts like gross, net, recoupment, offsets and other variables. (This is another complicated subject that I can talk about later.)
Choices that Artists Must Make
In certain creative circles, the types and amounts of revenue are fairly straight forward. Writers for some mediums often get an advance. A work for hire artist for comics often gets a page rate. There is more confusion for creators pursuing creator owned deals. There is often no advance, no MG and a blanket royalty rate for all forms of distribution. This puts them creators in a dangerous position since the lack of up front money and the uncertainty of any profitable sales in the future means that the creators are really working on spec while at the same time giving up all their rights to their property.
From the publisher’s perspective, it is understandable why they would take this stance in their contracts. Publishers protect themselves from risk by limiting exposure to projects that might not be financially viable. At the same time, they maximize their potential gain by securing as many rights as possible for projects that are financially viable. Artists need learn the same lesson. They need to counter the publisher’s position by attempting to limit the rights that a publisher gets for projects that are financially viable and maximizing revenue for every project they do.
I know negotiating power is often limited for artists. But having a clear understanding of the relationship between revenue and rights and clear goal of where they want to go can help maximize their limited negotiating power and increase their chances of success.
Best
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.