Friday, April 29, 2022

Pixels & Panels Podcast Interview

     With what little free time I have lately, I have been working on a long article on a specific area of copyright law. I could have whipped up a quick post that what have likely been a rehash of something I've written before. Instead, I'll leave you with a link to a recent podcast interview I did. I hope you enjoy.

https://podcasts.apple.com/mx/podcast/13-what-does-a-comic-lawyer-do-and-why-do-you-need/id1591270391?i=1000558630458


Wednesday, March 30, 2022

Book Review: Words for Pictures

 

            I recently read Brian Michael Bendis’ Words for Pictures (affiliate link). It was a well-written and informative book. It is a must for any aspiring comic book creator, particularly writers.
            This book has been on my list to read for some time, but I kept putting it off until multiple people recommended my reading it. I was worried it wouldn’t be relevant to my interests, as I thought it would be primarily focused on the craft of writing, working with artists, and making comics. To my pleasant surprise, Bendis included an entire chapter on the business of comics, which touched on some major legal issues.
            In Chapter 6, Bendis included an interview with his wife Alisa, who runs their company. This section includes many nuggets of great advice, including some great information on important contractual terms. One piece of advice that really spoke to me, besides hire a lawyer, was to treat each of your projects as if they will be big successes and plan and negotiate accordingly. Even though I write and talk about many of the topics they discuss in this chapter, it was refreshing to see it from a different perspective.
            Creators, new and old, will definitely benefit from reading the book, but I urge readers to pay attention to chapter 6. If you won’t take my advice, I hope you’ll at least listen to Alisa and Brian Bendis.

Saturday, February 19, 2022

Top 5 Questions to Answer Before Signing a Creator-owned Contract

 

        This year marks the 30th anniversary of Image Comics. As most of the readers of this blog should know, Image Comics was formed when a group of top Marvel artists decided they wanted to strike out on their own and reap the rewards of owning the characters they created. To this day, I still believe that the main line of Image Comics is the truest version of creator-owned comics. Image takes a reasonable fee for publishing the book, and it doesn’t take a creator’s media rights. In honor of Image’s anniversary, below are some of the key I think creator’s should answer when evaluating a creator-owned deal.

 

1) How long is the deal?

This is often called the Term in a contract. The Term of an agreement can vary. Sometimes, it can be a set number of years. Sometimes, it can be tied to the length of a series. Sometimes, a publisher can ask for the rights to last indefinitely. It is important to know how long your work could be tied up by a publisher. I am strongly of the opinion that a publishing contract should have a defined end date. If it does, make sure you are comfortable with how long it is. If it doesn't, then you need to see point 2 below.

 

2) How and when do the rights revert?

This can fall under both termination rights and reversion. Are there clear instances where you can terminate the agreement if the publisher takes, or doesn’t take, certain actions? For example, if the publisher goes out of business or stops publishing comics, can you terminate the agreement? If the publisher doesn’t release your work within a certain period of time, can you terminate the agreement? These are all important. Additionally, you’ll want to make sure that at some point, either via termination or a reversion clause, the rights to your work revert to you. This is particularly important if there is not a defined Term to the publishing agreement.

 

3) How much are you being paid?

Are you receiving an advance? What’s the royalty percentage? How often are you being paid? All of these should be considered when you are evaluating whether a publishing agreement is right for you.

Pay attention to what percentage the publisher is taking from sales of the book and any other rights they might have. Also, pay close attention to what they are recouping before paying you your percentage. Most deals are structured in a way where the publisher will earn back any money it has spent in connection with publishing and distributing your book, once those fees are recouped, there might not be much left for your split of the profits.

 

4) What rights are you giving up?

Be wary of what you are giving up. Some publishers like to bill themselves as creator-owned or creator-friendly, but they still try to take all of your rights and leave you with no control over your work.

Also, I’ve talked about this before, but I’m strongly of the belief that publishers should only get publishing rights. However, more and more creator-owned publishers are demanding the ability to profit from a comic’s media rights as well. You will need to carefully evaluate whether this makes sense for your work, and if you are comfortable giving up whatever control the publisher may ask for.

 

5) What does the publisher bring to the table?

Are they paying you? Are they a top publisher who can substantially expand your reach? Do they have a history of launching and promoting successful books? Can they actually help you shop and/or exploit your media rights? In today’s world where it has never been easier to self-publish quality comics, it is important to evaluate what a publisher can do you for you.

 

While these are not all of the things you should watch out for, these are some of the top things I look for while evaluating a contract. You should carefully weigh pros and cons of working with a particular publisher before signing a contract, and taking into consideration these points will help.

 

Saturday, January 22, 2022

An Invincible Lawsuit

 

            News recently broke that William Crabtree, the colorist on the first 50 issues of Invincible, sued Robert Kirkman and his companies. In the complaint, Crabtree is seeking rescission of an agreement that purportedly transferred his copyright interests to Kirkman, an accounting of money due to him, and a declaration of joint ownership in the Invincible series.

            For those familiar with the dispute between Kirkman and Tony Moore over The Walking Dead, the facts alleged in the complaint are very similar.[1] Crabtree worked as the colorist on Invincible for the first 50 issues, and there was no written agreement. The complaint states that Crabtree and Kirkman agreed that he would receive 20% “of single issue sales…with a minimum of $40 per page” and 10% of any adaptations.

 Kirkman approached Crabtree in 2005 at SDCC, and asked him to sign a document, titled a Certificate of Authorship, that would give Kirkman the rights to Invincible. The reason given to Crabtree for signing the document was to make the rights ownership simpler so that Invincible could be sold to Hollywood for adaptation. The complaint states that the 2005 document retroactively declared Crabtree’s contributions as a work-made-for-hire. The complaint also alleges that Crabtree was not given the opportunity to have an attorney review the document. Crabtree was told that it was urgent the document was signed because of meetings that would take place. Kirkman verbally told him that the basics of their deal would remain the same. Crabtree signed the document and never received a copy.

After signing the deal, Crabtree continued to receive the same amounts, if not greater, from Kirkman. He also received additional payments when the comic book was optioned by MTV and Paramount. However, when Crabtree approached Kirkman in 2020 about additional payments from the recent Amazon adaptation, he was told that he had no ownership in the work, was not entitled to additional payments, and any previous payments had been discretionary bonuses. Crabtree subsequently filed this lawsuit.

We will see what happens with this lawsuit. Most likely it will settle, but if it doesn’t, it could provide an interesting look at how copyright law views the contributions of colorists in relation to comic books. In Gaiman v. McFarlane, the court recognized that the contributions of the writer, illustrator, inker, and colorist are essential to creating the final, copyrightable comic book, even though some of their contributions, on their own, may not be separately copyrightable.[2] The complaint makes the argument that Crabtree’s colors were instrumental in creating the look and feel of Invincible, and his contributions entitle him to be a joint-owner and joint-author of the work. Since there was no written agreement, his work cannot be a work-made-for-hire, and his contributions could likely make him a co-owner of the final work. If he is a co-owner of the work, then he could assign his rights, but you cannot retroactively deem something a work-made-for-hire if it is not. So, the facts surrounding the meeting between Kirkman and Crabtree in 2005 will be key to determining whether there was a valid transfer of rights.

Overall, this is a strong reminder to get it in writing, have it reviewed by an attorney, and don’t let anyone pressure you to sign a deal until you’re comfortable with it.

 

A copy of the complaint can be found here.



[1] It should be noted that the same attorney who represented Moore is also representing Crabtree.

[2] Gaiman v. McFarlane, 360 F.3d 644, 659.