Archive for the ‘Contracts’ Category

Epic Comics: submission contracts

Sunday, October 5th, 2003
Contracts

NOTE: Marvel is no longer accepting submissions for Epic Comics. See here for more information.

A lot of aspiring comics creators are getting their first encounter with the legal side of (possibly) working in the industry as Marvel is accepting submissions for the resurrected Epic Comics imprint. In addition to writing 22 pages of script or penciling 5 pages of sequential-art storytelling, submitters have to send in some legal paperwork. To help others understand these contracts, and make an informed decision about whether to sign them, I’ve done “translations” of them from legalese into standard English. In this article, I’m covering the Idea Submission Form and the Work Made For Hire Contract.

The most critical document to sign and include is the Idea Submission Form. This document is essentially a “release” form for the writer to sign before submitting his proposal to Marvel for consideration. They need this to protect themselves from frivolous lawsuits over the material you’re sending them. They want a copy of this attached to every script you submit, otherwise they’ll have to throw it out. Here’s what it means, paragraph by paragrah:

1. You’re not the only person thinking up this kind of stuff. Marvel is in the business of coming up with ideas for comics and it’s entirely possible that they’ve already come up with something similar to what you’re proposing, or they might come up with (or get a proposal suggesting) something similar in the future.

2. If so, you’re not entitled to any payment for it, because it isn’t your proposal they’re using.

3. They’re not sending your stuff back to you. Always send copies, never originals.

4. Don’t expect anything more than a “yes” or a “no”. If you haven’t heard anything yet, it’s possible your rejection letter got lost in the mail, but they probably just haven’t gotten to it yet. If they say “no”, they don’t have to say why. If they say “yes”… well, who cares why? {smile}

5. You can’t submit anything that’s owned (even just a part) by someone else. It has to be composed entirely of Marvel’s property (stuff from the Marvel U), your own property (an original story and/or characters), and/or public property (such as Tom Sawyer or King Arthur).

6. Give your real name. Maybe they’ll let you publish under a pen-name, but they still need to know who you really are. (They knew who the “anonymous” writer “X” was.) And if word were to come out that Epic’s new gay porn series XXX-Men was being written by you, Donald Wildmon, and illustrated by your buddy Gary Glenn, that would be the American Fascist Association’s problem, not Marvel’s. If it were true, that is.

7. Marvel lives in the U.S. of A. and you’re limited to the rights that U.S. trademark and copyright laws give you. (Don’t blame Marvel for this; the government of your country agreed to this when they signed the Berne Convention and/or the Universal Copyright Convention. Fortunately those treaties also set some good minimum standards for copyright protection - which forced the U.S. to improve its laws - so it’s mostly the details that vary from nation to nation.)

8. Don’t even try calling or pitching to Marvel in person at a con.

9. This stuff is way too simple to be worth a trial. If there’s a problem, it’s going straight to arbitration*, and Marvel’s too busy to leave the Big Apple, so it’ll be someone in NYC. Confidential arbitration is an option (but only people with something to hide ask for that). In any case, you’re not getting more than $5000, and if you wait more than 6 months to complain, forget about it.
* Arbitration is a bit like going to “Judge Judy” but without the theatrics and with (hopefully) more intelligent participants: You tell your side, Marvel tells their side, and the arbitrator decides what to do about it.

10. If your proposal is a superheroic take on “Romeo and Juliet”, Marvel can do another superheroic take on “Romeo and Juliet” without owing you anything. They have as much right to do Shakespeare as you do.

While it’s conceivable that Marvel is going “steal your idea”, that sort of thing is unlikely, and 99% of such lawsuits are jokes that just waste everyone’s time. So I can’t blame Marvel for requiring you to sign this document, and you’re really not giving up anything by doing so, except the right to make a doofus of yourself by joining that 99%. Ideas are cheap and plentiful; they grow like dandelions in June. And even if Marvel did “steal your idea”, unless they also stole your plot or your dialog or your characters, they didn’t steal anything you really owned, because you can’t copyright or own a mere idea. In other words, stealing ideas may be immoral and unethical and Just Plain Wrong, but it’s legal.

The next-most-important document is the Work Made For Hire Contract. While you might get away with leaving this out when you send in your submission, you’ll have to sign it before they’ll publish your work. This applies to “creator owned” submissions as well; Marvel will not publish those unless you sign over ownership to them, making those WMFH as well. It has to be signed by “you”, the writer making the proposal, and it’s signed by Marvel when/if they accept that proposal. At that point, it goes into effect. It establishes the terms under which you and your team will do this work for Marvel.

1. You have to actually do the work. It has to be good enough for publication and it has to be done on time. Marvel can fire you or you can quit for any reason - including “stupid” ones - but if so, either one of you has to give the other a month’s notice. So if you’re doing a monthly, that effectively means you have to finish the issue you’re working on, even after they’ve fired you or after you tell them “I quit.” (If they fire you for a “good” reason based on the contract - like failing to live up to this paragraph, or paragraph 7 - of if you quit for a “good” reason - like they fail to pay you - the 30-day-notice may not apply.) By the way, if you quit or get fired, Marvel can keep the series going without you, because…

2.a. Whatever you create for Marvel becomes their property.

2.b. This paragraph tries to establish that whatever you create for Marvel never was your property, because you created it as “work made for hire” (aka WMFH). Exhibit A spells this concept out more explicitly, but the gist of WMFH is that the legal “creator” of the work is the company, and you’re just one of the cogs in the creative machinery of that company, with no ownership of the work you do for them. Legally, they could even deny that you had anything to do with it (the “moral rights” bit). In case this paragraph doesn’t stand up in court, Marvel will still enforce the previous paragraph instead, which is the next best thing for them. There’s an exception for material you create on your own and then try to sell as a finished product to Marvel, but for a proposal like this, once Marvel tells you “yeah, go ahead and create that book for us” and the check clears, whatever you create for it is - and always has been, and always will be - theirs.

2.c. A “natural person” is any individual, regardless of whether you’re a clone, android, temporal anomaly, spawn of the devil, etc. The alternative is that you’re a legal entity, such as a partnership or corporation (which our legal system treats as if it were a person, with civil rights and so on). If you’re creating something for Marvel, and doing it collectively as a studio or whatever, you have to apply the terms from the previous two paragraphs to your employees and subcontractors. So you can’t try to trick Marvel out of ownership by putting a disposable shell company between the actual creators and the publisher. Exhibit A appears to be one of Marvel’s standard tools for accomplishing this.

2.d. Once Marvel buys it, you can’t take any part of this script and re-use it elsewhere. If they had rejected your Squadron Supreme story, you could rework it into a JLA story and sell it to DC, or publish it yourself with your own JLA knock-offs. But they bought it, so you can’t. This includes any new characters you introduced. It especially includes any existing Marvel characters or other bits of MU continuity you included. If Marvel pays you for it, but then decides not to publish it… well, you got the Fortune (such as it is) - but not the Fame - for your brilliant story. Tough.

2.e. Since Marvel owns it, they can do what they want with it. That doesn’t mean they will make changes, but it means they can. You have no say about whether it gets used for a movie or game or novel or Underoos, or what happens with it if it does, because it’s not yours.

2.f. And don’t expect to get paid for any other use of your material, either. (See paragraph 4.a for more about this.) In case this hasn’t sunk in yet: It’s Marvel’s property.

2.g. You’re giving Marvel the right to use your name and maybe some basic info about you to promote this book, but not for anything else. A no-brainer clause for you, but if you were, say, King Fahd of Saudia Arabia or AOL/TW CEO Richard Parsons or anyone with a professional reputation to uphold, you might not want to agree to this. Practically speaking, this means putting your name on the cover, in the inside credits, and in the solicitation, and maybe a press release to the comics news sites, explaining that you’re a 40-year-old comics-and-collectibles-shop owner in Cornfield, Nebraska. If you’re a 19-year-old hottie they might include a photo in the press release to get readers’ attention.

3. For the record: You have to get your work to Epic; they aren’t going to come get it.

4.a. Marvel will pay you $500 for all of this. They’ll also pay you the amount is stated in the Packaging contract, which will spell out the per-issue payments, and the bonuses based on sales. But that ain’t in writing here, so it hasn’t been locked in until you get the Packaging contract. They’ve also talked vaguely about some kind of bonus for anything that gets licenced to other media, and that would have to be in that other contract as well; if it’s not, figure that you’re not getting it. (And understand in any case that if your Dr. Obscure revival inspires someone in Hollywood to make a movie about him, it’s still just Marvel’s character they’re licencing, not “your” story; they’ll write their own screenplay, thanks. You won’t get any screen credit, and probably not a cent, even if some of your ideas show up on screen. Just ask Frank Miller or Chris Claremont, whose original characters and stories were used in the movies DareDevil and X2.)

4.b. Marvel can register their legal ownership of what you create, and you’re going to help them.

4.c. The only possible exception are new characters, which are defined and covered by a document Marvel calls a “New Character agreement”. Note: Characters related to existing Marvel characters (such as a new team-member for the X-Men, or Iron Man’s cousin Iron Girl) do not qualify as “new characters” for these purposes; it has to be someone all-new, presumably capable of supporting their own movie deal. If your story uses any of your own characters, especially ones that you care about, don’t make any assumptions about what that agreement will say; ask to read it before you sign this document. Reading betweent he lines, it sounds like it’ll give you a percentage for any licencing deals made for the character, but that’s just imprecise guesswork. Also, see my comments about paragraph 13.a.

4.d. Marvel will pay you directly. If you ask to have the money paid to someone else, you’re still bound by the contract, so you can’t weasel out of it with that trick either.

5. You can’t give Marvel anything that’s owned (even just a part) by someone else. It has to be composed entirely of Marvel’s property (stuff from the Marvel U), your own property (an original story and/or characters), and/or public property (such as Tom Sawyer or King Arthur). So if there’s a problem with the legal rights to the content down the road, it’s your fault.

6. Standard butt-covering clause. This is where Marvel denies any liability for anything else that goes wrong because of you. It’s your fault. Got it?

7. You might learn stuff about Marvel that they don’t want people to know, such as Bill Jemas’ cell-phone number, their plans to reveal that Ultimate Spidey is a mutant clone of Aunt May, an impending purchase by Tokyopop, or the fact that their letterers are locked in a closet and have to work with quill pens and the blood of any fanboys who show up wanting to see “the bullpen”. Leaking this info can get you fired and even sued for breach of contract. You have to keep your mouth shut even after you stop working for them, taking the sad plight of those letterers to your grave. (No one would care about the blood-drained fanboys.)

8. You’ll do whatever Marvel requires you to do to keep your… I mean Marvel’s legal property from falling into the hands of other people. Including yours.

9. If you have anything important to say to Marvel about your professional relationship (such as “I quit” or “I’m going to sue you for all you’re worth”), say it to the right people. They promise to do the same for you.

10. Marvel can sell you (at least the part of you that you’ve signed away with this contract) and your work to someone else. So if Archie Comics wants to publish your Punisher mini, and Marvel agrees, you’re writing for Archie now. (Hey, don’t laugh. They did an actual Archie/Punisher crossover several years ago.)

11. “We may be sleeping together, but we’re not married. So don’t try to sign any contracts on our behalf, and don’t even think about asking for the house or custody of the kids when we split up.”

12. You may be doing work-made-for-hire, but that doesn’t make you a legal employee. You’re self-employed, and personally responsible for everything that an actual employer would take care of, like benefits or taxes.

13.a. This contract is binding. Nothing else Marvel has promised (or that you’ve promised them) matters because it’s not included here. The per-issue compensation and possible bonuses in the Packaging contract mentioned in paragraph 4.a are the only exception. Note: They didn’t allow here for the “new character policy” mentioned in paragraph 4.c. I’m not sure what that indicates, but it could mean that it’s just a policy (subject to change at Marvel’s discretion) and not a binding contractural agreement. So don’t assume you’ll get any actual legal rights from it.

13.b. You and Marvel both need to sign a new contract to change any of this.

13.c. A standard “bathwater” provision to prevent any specific problem with this contract from wrecking the whole thing. If the Supreme Court says Marvel can’t do what they wrote in the second half of the third setence of paragraph 16.q the rest of 16.q still stands, along with the rest of the contract.

13.d. When Sony buys Marvel, you’ll be working for them. When you die from joy at seeing your by-line in a Marvel comic, your spouse and kids (who are we kidding? make that “your parents”) will be entitled to… well, whatever this contract entitles you to.

14. Marvel lives in the Big Apple and they’re not about to come out to Cornfield, Nebraska for a trial. Besides, they know how the New York courts will interpret the law and they’d rather take their chances with that, instead of letting some yahoo in California or Red China or Andorra apply their kooky local laws to it.

Exhibit A: This document appears to be what you’d use if Marvel buys your proposal and you need to assemble a “team” to produce the goods. Unless that happens, ignore this part of the PDF file. Because you (the writer who proposed it) are the one Marvel is paying, you’re responsible for getting the artists working for you to agree that this is “work made for hire” like in paragraph 2.b, and you all agree not to challenge that. In fact, it says that if anyone involved did have any problem with that, they wouldn’t even be working on this project… which, between you and me, is an important point for you to consider. This section uses the same kind of terminology you’d use for cut-to-order lumber or custom auto parts, to reinforce the notion that you’re not really creating anything; you’re supplying mere components under Marvel’s supervision, for their editorial staff to use to create a copyright-worthy work of literature/art.

Exhibit B: If you want your checks mailed directly to your silver-haired mother back in Smallville, they need it in writing. Use this form.

Most of this contract is about limiting your rights, with a lot less language dedicated to limiting Marvel’s. This is because Marvel wrote it, and they figure you need them more than they need you; there are more writers out there than there are publishers with rights to the Marvel Universe. It does give you some specific rights, which are good to know. Go through each item and ask yourself if this is something you’re willing to give up. If you get to the end and the answer is still “yes”, then send in your pitch. And if the terms of the contract mentioned in paragraph 4.a turn out to be acceptable, then go for it!

If you can’t agree to this contract, you can take the basic story (without Marvel elements) elsewhere. I’ve never seen the WMFH contracts Marvel gives to creators working for Marvel proper (i.e. not Epic), but (aside from the pay scale) I doubt they’re substantially better, so I wouldn’t bother trying to pitch to those editors for better terms. DC’s WMFH contracts are probably about the same. That’s the price of getting to play with someone else’s toys. In any case, if you still have your heart set on using Marvel’s characters, and think you have real talent, you may be better off “breaking in” the traditional way, by getting your work in print through other routes (such as self-publishing with your own characters) and negotiating a deal with Marvel from that position, which might give you a little better leverage. But probably not.

If you want more information about Epic Comics, the legal aspects of submitting to them, and general advice about how to do it, see my Understanding Epic Comics site.

Epic Comics: creator-owned contract

Sunday, October 5th, 2003
Contracts

NOTE: Marvel is no longer accepting submissions for Epic Comics. See here for more information.

Although Marvel originally said that Epic Comics (which was their imprint for creator-owned material in its previous incarnation) would publish creator-owned books as well as those featuring Marvel-owned characters, they later changed their mind. After all, most of their profits these days are coming from licencing their characters for movies, toys, junk food, etc… not printing comics.

But they did draw up a contract for publishing creator-owned material, and I have a copy of it, sent to me by an anonymous source. As I anticipated, it’s neither as creator-friendly as, say, Image’s almost-no-strings-attached terms, nor does it require you to give up as much as the “Work Made For Hire” contract does. But to be blunt, it’s a lot closer to WMFH than it is to Creator Ownership (as it’s usually thought of). Ever heard of a writer/artist possibly getting fired from producing his creator-owned series? You’re about to.

I’m not going to show the contract itself, because it’s not mine to publish. And I’m not going to go through it paragraph by paragraph (like with the others), because it’d be astoundingly tedious to go through all 12 pages, even with my patented Breezy Conversational Writing Style. Instead I’m going to pick out the most important and interesting points. Although it appears they won’t be offering this contract to anyone in the foreseeable future, it’s an interesting curiosity. So let’s pretend….

The general “theme” of the contract is very much as if Marvel owns your property and you’ve been hired (with pay) to produce it, but you also get a cut of the profits and a means of reclaiming your property down the road. Those aren’t the actual terms, but that’s the effect of it. For example:

 

  • Marvel gets the “sole and exclusive right” to publish this work and any spin-offs or sequels, in any format (including electronic media) for the duration of the contract. (No surprise; this was a given.) Note: “The duration of this contract” is longer than just the time to produce your mini-series or whatever; it lasts until the contract is terminated, as described below.
  • They get a perpetual licence to do reprints, even after the contract has been terminated.
  • Marvel will pay you for your services as writer/artist under the same terms as the Work Made For Hire Packaging Agreement (presumably allowing you to hire a team of artists, as you might need). Note: This is just for doing the chores of producing the book, not your compensation as the owner of the property.
  • You get 40% of the “Net Paid Receipts” for electronic publishing, merchandise licencing, and movie/TV/game licencing. Marvel gets 60% of it. Their definition of “NPR” looks like a pretty standard formula that works out to “total income minus Marvel’s costs”… which leaves some room for accounting tricks, but probably less so than in Hollywood contracts.
  • You don’t get money for foreign reprints. This is a long-standing sore point regarding Marvel contracts, as I recall. (This doesn’t apply to Diamond-distributed shipments overseas, but to foreign companies that licence the material to translate and publish domestically.)
  • Marvel has sole rights to licence your work for movies, TV, games, etc. including sequels. Income from that falls under those 40/60 terms.
  • If you don’t produce the material to Marvel’s satisfaction, they can A) ask you to “fix” it, B) hire someone else to “fix” it, and even C) fire you and get someone else to do the job “right”. Paranoid conspiracy theories notwithstanding, they’re going to prefer A over B, and B over C. But they could do it. Note that you’d still be entitled to your 40% royalties as owner if this happened… assuming there were any profits on what was produced without you.
  • If Marvel feels there’s something in your work that’s obscene or libelous or a copyright violation or anything else that could land them in court, you have to give back whatever money they’ve paid you, and the contract is terminated. Ouch.
  • Marvel will cover the costs and paperwork of registering the copyrights for you, and won’t contest your claim of ownership. If someone violates your copyright, and Marvel joins you in suing for it, you’ll split the legal bill for it with them (you paying the same as Marvel Corp.), and the award (if any). If either of you goes after the perp by yourself, you (or they) will pick up the whole tab, and you (or they) get the whole award (if any).
  • Marvel promises to return your art to you. (This is better than Jack Kirby got.)
  • The Escape Clause: If Marvel leaves your material out of print for five years, and declines to put it back in print within 6 months of you telling them to use it or lose it, the contract terminates. You get all your rights of ownership back, including the right to buy up (at a discount) any leftover copies and production materials they have. However if Marvel has any active licencing contracts at that time (e.g. action figures in production, a movie sequel optioned) those will remain in effect until they expire of natural causes.CLOSING THOUGHTS:This contract would leave your property genuinely “creator owned”. What it wouldn’t do is keep it “creator controlled”. This contract is, in very many ways, like doing a Work Made For Hire project for Marvel, but with a provision for “unscrambling the eggs” (as Bill Jemas once put it) to restore most of your rights as a creator down the line. So it’s a half-step “up” from the WMFH contract with the New Character agreement attached.Originally I listed a bunch of things I thought Marvel might want in this contract, and sure enough: most of them are there. The right to replace you as writer and/or artist took me by surprise, but in retrospect it’s the logical conclusion of their right to refuse publication, mixed with their interest in having the work finished. I haven’t seen enough contracts used elsewhere in the comics industry to know how common some of these clauses are, but I’m sure they’re more common than one would like to think, because I’ve heard some horror stories over the years. And this is Marvel, a company which frankly sees little point to creator ownership… because, let’s face it: they’re Marvel. They’re one of the two biggest comics publishers in North America, so they have no shortage of talent to work with. And their biggest source of revenue at present is from licencing their intellectual property, not from printing and selling books.So now that I’ve earned the wrath of everyone at Marvel by releasing this information, I’m going to earn the contempt of my fellow creator-ownership advocates by suggesting that for some people, this contract might be worth it, and what seems like a rip-off could work to your advantage.

    First of all, just as there are people who wouldn’t mind doing Work Made For Hire using existing Marvel characters (in which they will have no ownership or financial rights), or who’d be willing to sell their characters under WMFH terms (in which they have no ownership and some small financial benefits), there are people who wouldn’t mind entering into a contract which is in many respects like WMFH, but with a better potential for income, and an eventual escape clause.

    Second, the fact that Marvel “participates” so heavily in the profits, especially from licencing deals they can hold onto for years to come, means they have a real incentive to market your property, which a company with no such financial interest (such as Image) doesn’t even pretend to be interested in doing. If your idea is something that Hollywood and the popcorn-munching masses would go ga-ga over, but you have no hope of selling it to them on your own, there’s a chance this could be a very good deal for you. On the other hand, if these are your precious characters and a story dear to your soul that you just want to express words and pictures, then this probably isn’t a good deal for you at all.

    It comes down to what I’ve been saying since I started giving amateur legal advice about Epic back in May: Understand what you’re being asked to sign, and decide if you can live with it. Only your lawyer can tell you what’s at stake. Only your heart can tell you if it’s worth it. If it is, go for it. If not, find some other way to publish your story.