David v.s. Goliath: Negotiating Power in Creative Contracts

By Gamal Hennessy

When I analyze contracts for my clients, I point out all the language in the agreement that has been written to favor the publisher. I point out all the ways that contract clauses are used to limit their control over their work and their ability to make money. I offer them suggestions on how to make the contracts more equal and level the playing field. But I am aware that the terms of most of these deals will never be changed. As a comic book creator, you often must deal with the reality that you have little or no negotiating power relative to a publisher. Taking this fact into account will help you make decisions about what deals you will or will not get into and help you understand how they will impact your career.

Scarcity Breeds Power         

Publishers have to take the financial risk of releasing an unknown and unproven book. In order to mitigate this loss and to give themselves the potential for substantial revenue and control on the back end, many of them incorporate biased language into their contracts. Many creators sign those contracts because of their lack of influence.

It is easy to understand why comic creators normally have very little negotiating power. It boils down to supply and demand and market scarcity.

The publishers currently corner the market on supply. They control the means of production (printing) and direct distribution (comic shops, bookstores, online and digital) and often control secondary distribution (merchandise and media licensing)

The number of comic creators who want to gain access to the publishers supply is massive compared to the number of publishers. Who knows how many potential artists and writers are out there dreaming of getting their books in print, movies and games?

The scarcity of publishers relative to the abundance of creators produces a situation where publishers can afford to offer one sided deals. Every unknown creator who demands a superior deal can be rejected by the publisher because there are ten or twenty other creators willing to accept an inferior deal. Since the publisher is primarily looking for books to fill their publishing plan, one unknown book is just as valuable as any other from their perspective.

Options for Creators

In light of the reduced negotiating power that undiscovered creators have, does it make sense to push for a bigger deal for a creator owned project or page rate? Yes and no. While you might not be able to wrestle a six figure advance out of Marvel, there are options you can pursue to make the most of your work.

• Establish your reputation in the industry by taking on work for hire projects that will get you exposure for your skill without exposing the characters and story lines that you are saving for a creator owned work.
• Find a more flexible small press that will offer more reasonable terms for new creators.
• Explore self-publishing if only to increase your name recognition in the market.
• Accept the biased deal as a means of name recognition.

While none of these methods is a quick road to fame and fortune, they can boost your negotiating power over time. An unknown creator has almost no leverage with a publisher. A creator with a following who represents tens of thousands of copies sold per month can command lucrative exclusive contracts, back end participation deals and creator owned contracts that give them considerable revenue and control potential. The best analogy is the contract situation in professional football. As a player, you may not make very much on your first deal but once you prove yourself as a marquee player, your subsequent contracts can be huge.

Need to Understand Your Agreements

Whether you make the choice to accept a one sided deal, negotiate better term or walk away, you need to understand what the terms are for the deal you are being given. It might make sense to take a bad deal now if it will boost your career later. The key is making an informed decision about what you are doing. Whether you decide to use a service like mine or not, knowing what you are signing and why is key to building and leveraging your negotiating power.

Best

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.

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.

Who's going to NYCC Artist Alley this year?

The annual East Coast gathering of comic book excess is only a few weeks away, and the independent creators have already staked their claim to Artist's Alley.

Click the link to see the table placements for NYCC 2016. http://bit.ly/2bH0ZD8

If you're an artist or writer who has legal or contract questions about your projects, I plan to be in The Alley on Thursday, October 6th. I'd be happy to sit down and chat with you.

If you'd like to set up a quick meeting, just shoot me an email at gamalhennessy@gmail.com.  Otherwise, I'll see you on the show floor.

Hav fun.

Gamal  

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.

The Continuing Rise of Independent Comics

The convergence of easier self-publishing and the increased interest in comic properties from film franchises has created a higher profile for indie comics. Creators can go outside the Big Two and get stories into the hands of readers faster than ever before.

Nicole Spector of Publisher's Weekly posted a piece late last week about the ongoing challenges and opportunities for independent comics. While Diamond is still seen as a gatekeeper to comic shops, and profit continues to be elusive, she points to several positive developments for creators now and in the near future. 

Click the short link to read The Subversive Superheroes of Indie Comics: http://bit.ly/2bwqLIR

Have fun. 

Gamal  

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.

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.

Ten Books for the Professional Comics Creator

Any aspiring artist needs to study their craft if they want to be successful.

New talent entering the marketplace has to have an understanding of their industry to avoid making mistakes and wasting precious resources.

Comics are no different. A firm understanding of the art and economy of the business is the foundation of success. 

A lot of books have been published to help new and veteran creators navigate the craft. John Wilson of Complete Set recently offered ten titles that touch on the creation and sales of sequential art. Some of his books are classics from forty years ago. Some came out last year. All of them are worth looking into if you want to make and sell comics.

Read Ten Books to read Before You Start Creating Comics: http://bit.ly/2bAuyXA

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.

Have Fun.

Gamal Hennessy  

Are There Too Many #1 Issues in Comics?

by Gamal Hennessy

Modern comics from the major publishers often revolve around reboots, relaunches and other universe wide "events". Fans have mixed emotions about this phenomenon from a story perspective, but it also impact the numbering and designation of books outside the story.

Benjamin Bailey of Nerdist.com recently wrote a post looking at the impact of comic numbering in comics. As a professional comics creator, it pays for you to consider how your potential fans are introduced to and follow your work. There might be things you can learn or avoid by watching the decisions of the big two

Read: Reboot or Relaunch: Does the Numbering of Comic Books Matter Anymore?

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.

Have fun

Gamal Hennessy, Esq.

My Podcast Interview with Comics Pros and Cons

by Gamal Hennessy

Comics Pros and Cons is a podcast hosted by Derek Becker about the craft and creativity of comics. While most of his guests have been comics creators, he decided to bring me on to talk about the business and legal aspects of the industry. 

Our conversation covered a lot of ground, including a discussion of:

• Copyrights and trademarks
• The four types of comic book professional
• The fan art controversy
• When comics creators need to have a contract

We had a lot of fun recording the podcast and the topics will be of interest to anyone interested in the comic book industry. Feel free to click on the link below and subscribe to Comics Pros and Cons while you're there.

Gamal Hennessy interview with Comics Pros and Cons

Have fun.

GH

Why Can’t You Write the Contracts for Your Freelance Business?

By Gamal Hennessy

This might be the best time to be a freelance professional. The existence of so many online tools gives you the chance to take an idea and turn it into a business.

But can the DIY spirit be dangerous if taken too far? Is there a point where it is helpful, even preferable, to bring in a professional for certain jobs? 

This video talks about three reasons why it makes sense not to do it yourself when it comes to legal agreements, especially ones involving your intellectual property.

Have fun.

Gamal Hennessy, Esq.

NYS Bar Number 2917649

What is a Contract and Why Do Artists Need Them?

by Gamal Hennessy

If you’re a professional freelance artist, you already have a lot to worry about.

Do you need to concern yourself with contracts too?  

In a world of instant transactions and online business, do you really need to spend time and money on a piece of paper no one wants to read and few people understand?

And what is a contract anyway?

What’s the point of it?

When do you need to have one?

The first episode of my video series will touch on all these questions, and then talk about what could happen if you don’t have the right contracts for your work. 

Do We Have Too Much Comics Based Entertainment?

by Gamal Hennessy

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

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

The Reality TV Connection

Consider the recent past, before the current “golden age” of television with Game of Thrones, Mad Men and Breaking Bad where unscripted or “reality” TV dominated the pop culture landscape. It began with experimental shows like MTV’s Real World and then expanded into things like Road Rules. A few years later, shows like Survivor, the Bachelor and American Idol became prime time staples.

That prompted a flood of reality programming. The category got so big it had to develop subgenres to create differentiation. They had makeover shows, celebrity shows, and competition shows. Every network felt the need to jump into the category. Networks like the History Channel and Food Network created shows having little or nothing to do with the channel’s original purpose. The phenomenon became so big MTV itself morphed into a reality TV network. For all intents and purposes it abandoned music videos altogether.

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

The Tail That Wags the Dog

Now consider the evolution of comics based entertainment over the past twenty five years. The success of films like Batman in 1989, Spider-Man in 2002 and the Avengers franchise in 2013 have made this genre of film one of the most financially successful categories in the history of movies. (See IMDB Highest Grossing Films of All Time). When you add the success of TV series like Smallville and Arrow to the equation, not to mention animated series like TMNT, Batman, Justice League and X-Men and you have a content avalanche that’s only gaining momentum. We’ve reached the point now where some universities are devoting college classes just to the comic book movie phenomenon (See New College Course for the Marvel Universe). The industry has come a long way from the sad days of films like Howard the Duck and Spawn.

More or Less

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

• Unlike reality TV, it will take more than a box office flop (or even a series of flops) to stop it. Green Lantern, Punisher and Ghost Rider taught us that.
• It won’t come from a lack of “A List” actors or characters. Iron Man wasn’t a household name before RDJ got to it and no one knew who Guardians were before last year.
• It’s not just a game for Marvel and DC, since Wanted, Sin City, Kick Ass and Walking Dead have shown independents can take their titles to the screen too.

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

Will comic film and television get their own awards category at some point? Which network will abandon its original mandate and become a comic entertainment channel? The questions seemed silly ten years ago. Now it doesn’t seem so farfetched. In the world of comic entertainment, comics are becoming the bottom priority, not the top (See Making Comics Isn’t Really about Comics Anymore)

Forward Thinking

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

1. Opportunities beyond traditional comics are continuing to grow not just in terms of TV and film, but in the areas of video games, streaming video and other forms of entertainment
2. While the chances of translating any given property into a mainstream market release is still rare, it is essential for creators to know and protect the rights they have in the comics they create
3. The amount of quality entertainment coming into the marketplace can raise the bar across the industry and drive innovation in art and story quality.

We might be living in the golden age of transmedia entertainment, but it will take creative expansion and prudent business choices to keep the momentum going.

Have fun.

Gamal

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