Saturday, 8 August 2015

Comics & Corporations: Creativity Under Contract

(from Newswatch by Michael Dean, The Comics Journal #273, January 2006)

Talking to the Journal on the subject of comics creators and contracts recently, Cerebus creator Dave Sim was reminded of a story that he and the Journal had both heard from artist Neal Adams. It went like this:
At an early 1970s meeting of the Academy Of Comic Book Artists (a no-longer-active attempt to organise a collective response to issues of concern to the comics-artist community), Adams spots Superman artist Curt Swan and goes up to introduce himself. "If ACBA is going to turn into anything," Adams says, "we've got to communicate with each other about the kinds of deals we're getting. What kind of page rate do you get from DC?"

Swan, taken aback by Adams' directness, is reluctant to divulge such information, which he regards as personal.

"I'll tell you what", Adams says. "I'll tell you my page rate and then you tell me yours. I get $50 a page."

Swan replies, "I'm making $43 a page, but I guarantee I won't be making $43 a page on Monday."
Sim and Tokyopop were at the center of a couple of information leaks this fall that had the comics community doing something it rarely does: talking about the specifics of comics-industry work-made-for-hire contracts.

Sim has famously avoided participating in the Internet age and is as likely to post a comment on a Web message board as any of the rest of us are to catch a rocket to Mars tomorrow. He did, however, make available to Al Nickerson's Creators' Bill Of Rights website a copy of a work-made-for-hire agreement he had been negotiating with DC/Vertigo, covering his proposed pencilling contribution to a DC/Vertigo Fables trade paperback anthology. Nickerson posted the contract on the site complete with Sim's negotiating annotations and a letter from Sim to DC attorney Keith Karwelies, proposing various amendments. The posting quickly became the subject of heated discussions on various comics-news sites and message boards, most notably Warren Ellis' pro-friendly board The Engine, where the tread attracted 143 posts in its first three days.

Sim himself was absent from the discussion beyond his original handwritten notes in the margins of the contract, but posters took up the debate over concerns raised by Sim, including DC/Vertigo's right to sit on art that it never intends to publish, a contract provision Steve Bissette called "reprehensible" and against standard pratice in other industries on his My Rant blog. Heidi MacDonald in her Beat Web-column, was more sanguine, commenting, "Once they bought it, they don't have to publish it... that kind of comes with the territory." MacDonald had personal experience of the policy when she edited the DC-commissioned Big Book Of Wild Women anthology, when DC then decided not to release. DC essentially ensured that the anthology could never see the light of day by requiring that before the material could be published elsewhere each writer/artist must pay to DC an amount equal to what DC had paid for the work. Since, outside the context of a DC-published anthology, the work was generally not worth as much as DC had paid, few contributors were willing to pay the required sum...

...Sim told the Journal he became involved in the project as a favor to his friend Bill Willingham, but he immediately began peppering DC projects editors Shelly Bond with questions about what the agreement would entail, which she then relayed to DC's legal department. "I don't usually get these kinds of questions," he remembered her telling him.

A month later, Sim said, he still did not have a contract in hand. "It was a nice open deadline that was becoming a nutcracker deadline waiting for the contract," he said. "They use that as a way of escalating the pressure. 'The longer we take to send the contract, the more likely you are to sign it.' It was the same stuff they'd been doing 20 years ago."

It had been exactly 20 years since Sim had last had work-for-hire dealings with DC. He had responded in 1985 to an open invitation from DC with a proposal that he called a "getting-acquainted project," in which he would produce a Cerebus miniseries for DC. If the experience went well it was intended to lead to "a sequential reprint of Cerebus along the lines of what Marvel was doing with Elfquest." It didn't go well. According to Sim, "We started out to negotiate a Cerebus miniseries, that Paul Levitz turned into: 'We'd really rather buy Cerebus or most of the rights outright.'"

A contract with a top-flight publisher like DC is what many incoming comics creators dream of, when they aren't dreaming of a movie contract, but the stark, encompassing language of a work-made-for-hire contract is a reminder of how thoroughly a creator can give up control of his work in exchange for a corporate paycheck. Paragraph 3 of Sim's 2005 document, which is identified as a standard DC/Vertigo graphic novel contract, explains: "An editor selected by DC will be assigned to supervise and work with Artist in the fulfilment by Artist or Artist's obligations hereunder. Artist agrees to cooperate with such editor and to comply with DC's instructions, directions, requests, rules and regulations, including those involving artistic taste and judgement."

A standard DC contract from 1988 shows that DC was then content to demand that "Writer shall produce the Work in accordance with DC's instructions and editorial standards." In 2004, however, that contract was replaced by one that said, "DC shall have the right to alter and to engage others to alter the Work in any way, including by adding or deleting Pages at DC's sole discretion and without obligation to pay for any Pages or Cover Artwork beyond the number specified above."

The Sim contract covered his work as a penciler/inker on a three-page story written by Willingham for an anthology based on the Vertigo Fables series. He was to be paid at the rate of $500 a page. The wording, which is standard for DC's work-made-for-hire contracts, takes some pains to nail down the publisher's ownership of the characters and concepts that make up the series: "Artist acknowledges that the Artwork shall be derivative of preexisting material including, without limitation, the names and pictorial and literary representations of fictional characters, companies, places and things (the "Preexisting Material"); that DC owns or otherwise has rights in the Preexisting Material and that Artist would be unable to produce the Artwork without the Preexisting Material. Artist further acknowledges that Artist shall not have, acquire or claim any right or privilege to use any of the Preexisting Material except as provided herein or as DC otherwise consents in writing."

In case there was any doubt, paragraph 7 tells us, "The Artwork created hereunder has been specially commissioned by DC for use as a contribution to a collective work and, for this reason, among others, constitutes a work made for hire as that term is used in the United States Copyright Act of 1976." As that term is used, it means DC owns all rights in the work and is considered to be its legal author. There have been high-profile, albeit unsuccessful, challenges to the status of some comics works' status as work made for hire in recent years, and DC may have been guarding against such challenges when it included a passage that says, essentially, that even if Sim's three pages are one day found not to be work made for hire at all, DC will still own everything: "In the event the Artwork is deemed not to be a work made for hire, then Artist hereby assigns to DC all rights in the Artwork, effective as of the date of creation of such Artwork, including copyright and any renewals, extensions or revivals thereof and trademarks rights, and all other rights to exploit the Artwork, in all media now or hereafter existing, throughout the world in perpetuity. Upon DC's request, Artist shall cause the execution, acknowledgement and delivery to DC, in form approved by DC, of and additional documents which DC may deem necessary or desirable to effectuate the purposes of this Agreement."

An additional passage -- not in Sim's contract -- appears in a 2004 DC contract: Talent irrevocably waives all rights of 'droit morale' or 'moral rights of authors' or any similar rights or principles of law that Talent may now or later have in the Work (whether now existing or hereinafter enacted)." There's a kind of obsession in the way the contract's language seeks to scrub away any lingering trace of creator's rights as well any that might legally emerge in the future, almost as though the publisher was haunted by the prospect of a single right remaining in the possession of a creator.

Even without that extra line from the 2004 contract, this kind of wording was bound to revolt a staunch self-publisher like Sim, and one of the objections he raised was to the open ended requirement that Sim supply any further documentation of DC's rights that DC might demand. In a letter to DC, in which he outlined his objections and counter-proposals, Sim wrote, "I can't in good conscience sign an agreement saying that I agree to sign another agreement that I haven't read."

More upsetting to DC was probably his suggestion that he should remain free to do whatever he likes with the work after DC has published it. "My own governing principle," he wrote, "is that if I worked on a page, I have the right to reproduce that page with or without consent of the copyright holder and/or collaborating artist or writer. Since he had no immediate plans to reproduce the work, he offered a compromise in which he agreed to leave Willingham's words out of the balloons and to wait an agreed length of time before doing anything with the work elsewhere.

Sim also protested the passage that distressed Bissette, which stated, "Nothing herein contained shall in anyway obligate DC to publish the Work. In the event DC shall decide not to publish the Work, DC shall so inform Artist. DC shall be obligated to pay only for portions of the Artwork delivered as of the date of cancellation." By implication the provision guarantees that DC will retain all rights even if it doesn't publish the work, thereby assuring that the work can never get into print except under DC's auspices.

But Sim was particularly offended by the allowance granted DC to back out of the deal while the contract forbids Sim from doing the same thing. Sim wrote, "It seems to me a case of: Do you want the work or don't you? In the same sense that I have to make up my mind: Do you want to work with DC or don't you? If I can't legally change my mind -- and under terms of the agreement, I can't -- then I don't think you should be able to either."

The contract specifies a schedule for the  delivery of Sim's work: A finished sample panel or page by Oct 28, 2005; breakdowns of the three pages by Dec 23; and the three completed (pencilled and inked) pages by Feb 25. Since the contract only requires DC to pay $500 for each completed page within 20 days of the delivery of the art, the publisher could technically change its mind Feb 24 and pay Sim nothing even though he had already done virtually all the agreed work.

The 2004 boilerplate DC comic-book writer contract refers to royalties as "contingent compensation" beyond the up-front page rate, and specifies that they kick in only after a work has sold 75,000 copies. After that point, a script author will receive royalties of 2 percent of the cover price of each copy sold. For subsequent reprints of the material, the same writer would receive16 percent of net receipts (as opposed to the gross receipts represented by the cover price). Sim's Vertigo graphic novel contract, however, follows the practice of prose publishing contracts in identifying the $500 page rate as an advance against royalties. This means that no royalties are paid until the $1,500 is recouped by DC according to a complex formula specified in its standard graphic novel policy. Advances are recouped at a rate of 8 percent of the cover price multiplied by its net sales. Once DC has recouped the advance, royalties are paid at a rate of 3.2 percent of the cover price for the first 100,000 copies sold; 3.6 percent of the cover price for the next 150,000 copies sold; and 4 percent of the cover price on all copies sold in excess of 250,000. In today's market, a graphic novel is lucky to break the 10,000 mark, and selling more than 250,000 is rare. Among Sim's proposed changes was the introduction of a third party or his own accountant to review DC's sales figures and determine that they are reported accurately...

...While no promotional activities are required, Sim's contract, as well as other standard work-made-for-hire contracts in the comics industry, do make a claim on the creator for promotional purposes: "DC shall also have the right, but not the obligation, to use Artist's name, likeness and biographical information in connection with the Work and/or DC in general." Sim balked at being used to promote DC in general and proposed that the line refer only to "promotional usage of the Work, both in-house and externally."

Asked if he had approached the Vertigo deal skeptically, Sim told the Journal, "Not as skeptically as I probably should have. Everybody was trumpeting the New DC since I'd negotiated with them last. I thought, Maybe it is a brand new DC."

It may have been naive of Sim not to know what kind of deal he was getting in to... but then the same could be said of DC. Based on his contentious and independent history, it would have been naive of DC to expect Sim to roll over and accept its every demand and whim as laid out in the contract. Nor is it surprising that DC terminated the deal rather than enter into negotiations. DC apparently judged that it would not pay to devote the time of high-priced corporate legal staff to hammering out a deal for three pages even if they were pages drawn by the creator of Cerebus.

Asked if he had found much room for negotiation in comics-industry contracts, [Kurt] Busiek told the Journal, "There's room for negotiation. In practical terms, though, if you're writing a backup story in a Spider-Man book, you take the standard deal. It's not worth haggling over on either side. If you're doing a long-term contract or a deal for a new series or something, then you want to make sure there are no problems with the contract."

On the other hand, according to Sim, those three pages might have turned into a future working relationship if he had been more satisfied with his treatment by the publisher...

...It seems clear that some creators-rights battles have been won. It's just as clear that new conflicts are emerging, and they are taking shape behind closed doors. A major front already exists between the comics industry and Hollywood and unless creators are alert, they may soon find that the comics industry has become the equivalent of a Third World, supplying cheap labour and content to the movie industry through the profit-seizing filter of exploitative comics publishers. The terms of such battles have always favoured the corporations as long as there have been new creators flocking to get into the business, working and negotiating in isolation.

But there are two important ways that the balance of power is shifting. One is the growing effectiveness of Web venues like Nickerson's Creators' Bill Of Rights site and Ellis' Engine, Internet group boards and e-mail lists -- tools for communication between creators that didn't exist a couple of decades ago. Leialoha told the Journal, "With the Internet, people can keep more in touch. I read Steve Bissette pretty regularly online, for instance. Everybody can keep up with what's on his mind. And whenever there's a goofy scam going around or when somebody's having a problem with anyone, you find out about it."

The other change might be seen as an inevitable evolution of the industry. [Literary agent, Sam] Hiyate, who has negotiated contracts between the book, film and comics industries, has a theory drawn from the histories of other media. "The comics industry is like the old studio system in Hollywood," he said, "but if they try to keep that system they will not be able to keep the talent. [Creative talent] have always fought back over time. As they become more famous, they create their own production companies, that's what people like Johnny Depp and Madonna have done. That's what they did as far back as the formation of United Artists by Charlie Chaplin, Mary Pickford, Douglas Fairbanks and DW Griffith." In a similar manner, book publishers once owned all rights in what they published, before authors began to leverage their individual popularity.

Image Comics, therefore, can be seen as a kind of United Artists of the comics industry. If it has taken the comics industry quite a bit longer than the movie industry to make these changes happen, it probably has to do with the relatively isolated and hidden way that creative work is produced in the comics industry. The movies have always emphasised credits and actors represent their own creative work in the public eye. Credits were slow to be introduced into comics and creative work was represented iconically not by artists but by a colourfully costumed, copyrighted and trademarked character -- the ultimate Company Man or Woman.

In the meantime, it will probably be another 20 years before Sim, who said, "It seems to me this definitely rules out DC as a market for me," will take another chance on DC-style work made for hire.

(from My Rant blog, 30 October 2005) 
...My objections were identical to Dave's, save for the audit concerns -- I long ago resigned myself to the reality that DC's royalty statements are accepted fait accompli or not at all -- hence, my decision not to work with Vertigo if they would even have me (which, for a short time in '98, they seemed to; at least there was a courtship, initiated by two of their editors). The most disappointing portion of the contract to my mind is DC/Vertigo's use of page rates as infinite open-ended options -- that is, they are not obligated to publish the work once completed and paid for, but rights do not revert to the creator(s) if they choose not to publish. This is, simply put, reprehensible, and puts lie to the "progressive" perception most of mainstream comics (the professional community and fans) have of the Vertigo line. How many unpublished completed works is DC/Vertigo sitting on -- and to what end? From more than one account I've been privy to from professionals who attempted to reclaim their work, DC/Vertigo requires that all fees connected to a given project be reimbursed to DC/Vertigo -- all fees including payment to all participants, and (according to one account) editorial fees and publisher overhead -- before they'll "release" a property. This is contrary to all standard book publishing contracts (wherein if a publisher doesn't publish an author's contracted/completed/accepted work -- say, a novel -- all rights revert to the author after a defined and contractually agreed-upon expiration date, no strings attached), and certainly contrary to the very "options" DC/Vertigo enjoys income from on a regular basis from Hollywood. In 1998, I argued that this clause was problematic and should be revamped to reflect standard publishing practices and movie-option terms, but that effectively ended what DC/Vertigo laughingly refer to as "negotiations" -- and there it remains, in a current 2005 contract... 

... I gotta say I side 100% with Dave regarding the DC/Vertigo contract and all it reflects, which is the topic here; when Colleen refers to "creator owned" Vertigo work (with Warren), I wonder what their contracts were. Nothing I've ever seen relevant to Vertigo or DC was truly creator-owned contractually, though there's lip-service paid to the concept...

...Heidi [MacDonald] blithely dismisses the objections Dave (and I once) raised by writing, "...because once they bought it, they don't have to publish it -- that kind of comes with the territory." Well, yes, it does come with the traditional model the industry was founded upon, but hasn't Vertigo claimed to be beyond all that?

For this old-timer, the $350-500 page rate being quoted by Dave and others as "top rate for Vertigo" earned a chuckle. Shit, we did Swamp Thing, the comic that spawned the entire fucking Vertigo line, for paltry rates: I was "raking in" $65-72 tops per page for pencils, with both Alan and John working for less than that. The pay is better these days -- but at least our work was published! Had it not, there would be no Vertigo.

When Al alerted me to all this activity back on October 24, he noted, "...three days after I posted Dave's DC contract to my website, there are 143 posts to this thread. That’s a lot, and I don't have the time to read all those posts. However, it does look like folks are talking about all this stuff. :)" Ah, yes, well, finally posting and discussing the details relevent to the "high end" of mainstream comics will have that result; the Ellis thread is now topping 233 posts.

Kudos to Dave, but kudos most of all to you, too, Al, for initiating and nurturing this ongoing discussion of a vital topic.



Sandeep Atwal said...

Fascinating. $65 per page of Swamp Thing. Wow.

Max West said...

Yikes...all those stipulations of what DC can and can't do plus strings attached for the signer...

I see why we're always told to read the fine print.