Contract Negotiation - More Red Flags

 

        I previously wrote about what I considered to be the biggest contract negotiation red flag -- a steadfast refusal to negotiate at all. Below, I’m listing a few more red flags that I look for in negotiations. If you encounter any of them, take a moment to think about how problematic it might be.

1) Won’t put it in writing

If a party makes a lot of promises to you, but they won’t put them in the contract, it is a major red flag. If it’s not part of the contract, it will be difficult, if not impossible to enforce, and if they’re unwilling to put it in writing, it’s a sign they might not mean what they say.

2) Urgency

If a party is pushing you to sign a deal quickly, then it is a red flag. Negotiations take time, and most legitimate businesses know this. If they are pushing for a deal to get done quickly it is (i) to serve their own agenda and/or (ii) to sneak a bad deal past you without proper vetting by an attorney/agent/etc.

3) Don’t know their own agreement

If a party is unable to explain the terms in their agreement to you, or if they don’t see how terms might conflict in the contract, it is a red flag. They either lack an attention to detail, or they are deliberately misrepresenting the deal.

4) Overly willing to make changes

This might seem counterintuitive, but a party that gives you all of your requested changes could be a red flag. It could be a secondary sign of the “don’t know their own agreement” red flag I mentioned above, or it could be that they just don’t care or don’t intend to honor the contract.

Comic Book Recommendations - 2021

 

            Another year is almost over, and once again, I’m going to provide a list of some of the creator-owned books I enjoyed this year. They may have been released in 2021; they may not have. As I stated in my 2020 list, I’m often woefully behind in reading. (Check out the 2020 list for some more great books.)

            I’ve provided links where I can. Links to Amazon will be affiliate links. Anywhere else is not. Even so, if you’re intrigued by these books, try to buy them from your local comic shop or book store.

 Chu, vol. 1 by John Layman and Dan Boultwood

I was a big fan of Chew, and I’m glad to have a return to its world. This time, it follows a sister of Tony Chu, the lead from Chew. While there are nice nods to the original series, this book stands alone and is easy to dive into for new readers.

 

The Good Asian, vol. 1 by Pornsak Pichetshote and Alexandre Tefenkgi

I’m a sucker for good film noir, and Pichetshote and Tefenkgi are nailing the vibe in this book. It’s an engaging read that explores some heavy topics around immigration and fitting in.

 

 Bowie: Stardust, Rayguns, & Moonage Daydreams by Michael Allred and Steve Horton

The initial attraction for me was the trippy Allred art, but Horton and Allred also craft an interesting and informative book charting the beginning of Bowie’s career.

 

The Department of Truth, vol. 1, but James Tynion IV and Martin Simmonds

A fascinating book exploring what would happen if false narratives became real.

 

Y: The Last Man, Book 5, by Brian K. Vaughn and Pia Guerra

I was incredibly late to reading this book, but it is excellent. The story follows the lone male survivor after a virus wipes out the male population on Earth.

 Murder Falcon by Daniel Warren Johnston

A surprisingly fun and emotional book with an interesting story and great art.

 

Black Magick: The First Book of Shadows by Greg Rucka and Nicola Scott

A solid detective/murder story following a police detective who is also secretly a witch.

Do Dr. Seuss and Fair Use (Comic)Mix? - Part 4

 

            It was recently announced that the lawsuit between Dr. Seuss Enterprises and ComicMix has settled.[1] I have been following the case since it began in 2016, and I’ve previously written entries about it. You can find the most recent entry, summarizing the Ninth Circuit overriding the lower court’s finding of fair use, here.

            In a filing with the court, ComicMix and Seuss agreed that ComicMix’s book Oh, The Places You’ll  Boldly Go! infringes on copyrights owned by Seuss, and ComicMix is prohibited from selling or distributing the book. ComicMix has stated that the motivation to settle the case was Ty Templeton’s recent diagnosis with cancer. ComicMix, and the other defendants, chose not to continue with the lawsuit so that Templeton could focus on getting better.[2]

            Five years after it began, the case is over. ComicMix prevailed on quite a few of the claims Seuss initially asserted, but after its initial fair use win was reversed by the Ninth Circuit, it decided to stop fighting. As I mentioned in a previous post, most companies and people don’t fight this long. It is time-consuming and expensive to do so. However, when these disputes do get litigated, it helps shape the law and provide guidance for others.

            What did the ComicMix case achieve? It showed that it can be difficult to prevail on a claim of trademark or trade dress infringement based on distinctive typography in a book. It clarified some of the fair use factors used to determine whether a work is a copyright infringement. Finally, it serves as a warning that mashing up two different properties does not automatically qualify as a fair use under copyright law.

            If you learn anything from this case, it should be to proceed cautiously when you are utilizing someone else’s work or character without their permission in your own work. Unless it qualifies as a fair use, it is likely copyright infringement, and if you want to claim fair use, you may have to go to court to defend yourself.

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[1] https://www.reuters.com/legal/transactional/seuss-comicmix-close-book-landmark-copyright-dispute-over-star-trek-mashup-2021-10-05/

[2] https://www.comicsbeat.com/oh-the-places-youll-boldly-go-lawsuit-settlement/

Halloween Costumes & Knockoffs - Part V

    Once again, it's the spooky season. I love Halloween, and as I've done the past few years, I'm going to point out some of my favorite superhero knock-off costumes on Amazon. You can find years two, three, and four at the links. If you want to re-read my first post that includes the legal whys behind knockoff costumes, you can find it here. Otherwise, on to the costumes! (Note: all links affiliate links)

Protect against Winter (Soldier) with this skin-tight top, or one of the other 20+ different superhero versions of it.

Help your child find their Glorious Purpose.

My daughter would actually like this Spider Gwenom.

Sexy Deadpool? Sexy Lady Deadpool? You decide.

A Wonderous Woman? Indeed.

Contract Negotiation - A Red Flag

 

            I’ve written a few times about contract negotiating power. However, I have not written about one of the biggest red flags I see when negotiating publisher agreements in the comic book industry—a publisher who refuses to negotiate the deal terms.

            I consider the refusal to negotiate a major warning. Your relationship with your publisher will never be better than when they are trying to get you to sign a deal. If they value you and your work, they should be willing to negotiate and address any major concerns you might have. If they are unable or unwilling to do so, then it reflects the value they place upon you. It is also a prelude to how they will act if anything problematic comes up later. If they didn’t want to work out problems with you at the beginning of the agreement, are they going to want to address problems you might have after the deal is signed?

            Now, not everything is an absolute. I have seen some publishers with relatively unproblematic contracts[1] who are not that flexible. They will try to address some concerns, but aren’t willing to budge on some key issues in the negotiating provisions. Again, this is less of a problem when the terms are relatively unproblematic to begin with. There are other publishers, however, who have incredibly problematic contract terms that essentially strip a creator of all rights to their project. If you try to negotiate the deal to make it fairer, they will tell the creator to “take it, or leave it.” In these instances, where a publisher will not even try to negotiate a fairer deal with you to address major concerns, you will almost always be better off leaving it.

            If you encounter a publisher that presents you with a contract that has terms you disagree with and the publisher refuses to negotiate or address your concerns, you need to give serious consideration to walking away. In most of my experiences, this is a major red flag and the relationship with the publisher will not improve.

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[1]     Most comic book publishing contracts are not that great for creators, particularly where payment of money is concerned. Nevertheless, there are some that are much more problematic than others when it comes to reversion rights and media deals.

5 Top Copyright FAQ's

Note: (Updated August 2021)

As an intellectual property lawyer who works with comic book creators and who hosts panels at comic book conventions, I answer a lot of questions about copyright law. As of August 2021, here are five of the most frequently asked questions.

1) If I place a copy of my work in an envelope and mail it to myself, does this give me copyright protection?

This is what’s known as a poor man’s copyright. It’s not a real thing. Once you have created your work, you own the copyright. Registering your work with the Copyright Office solidifies your claim of ownership and grants you some additional rights regarding enforcement.

2) How do I prevent someone from stealing my idea?

The answer to this question varies. The simplest way is to not tell anyone about your fantastic idea. The second best solution is to have everyone you tell about your idea sign a non-disclosure agreement, which can be burdensome and impractical. Typically, the best approach is to write down as much of your idea as possible in a detailed synopsis, outline, etc. This shows you have taken steps to actually turn your idea into a copyrightable work. If you do need to discuss your idea with someone else, either give them the synopsis you’ve prepared or, if you’re having a conversation and there is not an opportunity to get a signed agreement, don’t be as thorough in your descriptions. Additionally, it’s always a good idea to document who knows about your project.

3) Other people are making and selling fan art pieces, so it’s legal, right?

No. Just because others are violating someone’s copyright rights and not being stopped does not give you a free license to do the same. A copyright owner could come along at any time and enforce its rights through cease-and-desist letters, DMCA takedown notices, or lawsuits. If you are making and selling art using the intellectual property of others without their permission, you are likely infringing on their rights. Be careful. For more, check out my previous posts on fan art: Is Fan Art Legal? and Fan Art and Fair Use - An Update. 

4) If my work is 10/20/30% different than the original work I’ll be fine, right?

There is no set percentage that would make your work non-infringing. One of the factors courts look at is whether the new work is “transformative.” The Copyright Office describes transformative works as “those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.”[1] Obviously, you will be better off with more differences between your work and the original work.

5) What about fair use?

As I’ve said numerous times, fair use is a defense to copyright infringement. It will be raised in court after you’ve been sued, and the court will decide whether your work is a fair use. If someone thinks you’ve ripped off their work, claiming your work is a fair use probably won’t stop them from suing you. I’ve talked about fair use more in-depth here.

Bonus Questions:

6) Do I need to register a copyright?

    

Technically, a work is protected by copyright as soon as it is created. However, you must register your copyrighted work in order to enforce your rights, and if you register it before an infringement occurs, you can be eligible for statutory damages.

7) How much does it cost to register a copyright?

The copyright office charges different fees depending on what is being registered. The current fee for most works created by more than one individual is $65.

8) Can I copyright my title?

No, you cannot copyright a title to a single creative work. You may be able to obtain a trademark, but only if the creative work is part of a series or a meets other certain requirements. Comic book series are typically entitled to trademark protection.

For a bit more-detailed explanation of copyright law, check out my post here.

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[1] More information on fair use, Copyright.gov, https://www.copyright.gov/fair-use/more-info.html (last visisted August 30, 2021).

Conventions and Contributory Liability

 

I’ve been thinking about the return of comic book conventions. More specifically, I’ve been thinking about contributory infringement. Recently, the second circuit decided a case involving contributory infringement of a trademark at a retail property in New York. Contributory trademark infringement allows a trademark owner to pursue liability against a third party who did not directly infringe the trademark but somehow benefited from the infringement or encouraged it. As most convention attendees know, there is a good amount of unlicensed merchandise being produced and sold at conventions. Whether or not this case could have implications for operators of comic book conventions is a fascinating question. In particular, it is an interesting question to determine whether or not a vendor’s sale of goods or art could lead to contributory infringement on the part of the convention operator.

In the case Omega SA v. 375 Canal LLC[1], the Second Circuit Court of Appeals upheld a jury verdict awarding the manufacturer of Omega watches $1.1 million in damages. The decision focused on a building owner’s willful blindness of the infringing activities taking place at their building, namely repeated sales of counterfeit high-end watches and luxury handbags, and the owner’s failure to reasonably act to stop the infringing activity upon learning of it.

Whenever people talk with me about the legal issues surrounding fan art and publisher enforcement, one of the issues I bring up is how difficult it would be for publishers to monitor for infringing activities at the numerous conventions held across the country. I know of instances where a publisher’s employees have complained about infringing goods being sold at a convention. Typically, when a publisher’s employee complains the vendor is removed or the infringing item is removed. Obviously, the burden on publishers’ employees to enforce their intellectual property could be substantive. However, this decision in 375 Canal, and other similar cases, does present an opportunity for publishers to exert more pressure on convention owners to take steps to monitor and mitigate infringing activity.

In my experience, the typical convention operator handles claims of infringement in two ways. First, they will have exhibitors sign a contract stating the goods they sell do not infringe any 3^rd party’s rights, and the exhibitor will cover the convention operator’s costs if the operator suffers harm due to the vendor’s sales of infringing goods. Second, if someone complains about a particular item or vendor, the operator may remove the vendor from the convention.

The contractual part is a good first step, and recommended, but still leaves the operator exposed because most vendors would not be able to reimburse the operator in the event of a lawsuit. However, the contract is necessary to establish that the operator is taking infringement seriously. As for asking a vendor to leave due to infringement, this policy is a must. If the operator knows the vendor is selling unlicensed or counterfeit goods and does nothing, then they could be liable for contributory trademark infringement.  

As mentioned above, protecting and enforcing trademark rights at conventions around the country (and world) can be difficult for publishers. I’m certain trademark owners would love to force operators to take a harder stance on preventing infringement, and this case opens a slight door to do so. If a convention operator has a history of allowing infringing goods to be sold at their conventions and a history of turning a blind eye to such infringement, then the operator could be found guilty of contributory trademark infringement.

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[1] 984 F.3d 244 (2021).