Phantom Jack’s Epic escape


The saga of Epic Comics - the imprint that Marvel Comics briefly revived and then shut down this year - has included some surprises, both big and small. One surprise - to fans and the creators alike - was the news that the four Epic series slated to launch in Febrary 2004 were instead going to be shoved into a single quarterly (if it survived past #1) anthology. An even bigger surprise came days later: that Phantom Jack had managed to get free of Epic, and was going to be published by Image. Writer Mike SanGiacomo explained that he was (understandably) upset at what was happening to his series, asked the folks at Marvel to cancel his contract, and they did. Which is nice, but they may not have had a choice.

First, a little background: When the recent incarnation of Epic was announced, it was going to publish both creator-owned and company-owned material. That’s how it had worked in its previous incarnation, and Marvel exec Bill Jemas wanted to give it another try. So when Marvel solicited proposals from a bunch of comics journalists as a test of their processes, and to get the imprint off to a decent start, SanGiacomo submitted an all-original idea, about a reporter who can turn invisible, but doesn’t user his powers to fight crime under a code name, in an invisible costume.

The legal specifics of the deal hadn’t been worked out yet, so SanGiacomo proceeded under a loose verbal agreement with Marvel. When Marvel’s board decreed that Marvel would not be publishing creator-owned material, he was given the option of selling his character to Marvel, in exchange for a little cash up front and a share of the profits if it were licenced for movies, TV, games, etc. He agreed. He signed the Work Made For Hire contract that granted ownership of Phantom Jack (as well as the story itself) to Marvel, and the New Character Agreement that spelled out what share he might get of the hypothetical box office profits. He continued working the series with his art team. The first issue was finished - script, art, coloring, lettering - when news of Marvel’s change in publishing plans broke.

Because Marvel owns outright anything covered by the WMFH contract, they have every right to publish them as they see fit, including to shoving them into a doomed anthology. They aren’t even obligated to publish the material they’ve purchased… though a failure to publish the first issues could lead to the creators objecting to the implication that the work they’d produced was not good enough for publication: a possible opening for a defamation or breach of contract suit. It’d be bad PR as well.

One interesting tidbit to surface in the message board discussions after the quarterly-anthology news broke was the fact that SanGiacomo had not yet been paid for his work. There was no implication that Marvel was planning to stiff him, but it put the status of his contract in a whole different light. It sounds to me like it was unenforceable.

For a contract to be binding requires three things: 1) an offer, 2) an acceptance, and 3) consideration. This last bit is a legal term meaning that something of value has to be exchanged between the two parties. This is why you’ll sometimes hear about someone selling a piece of land for a dollar (or in olden days, a peppercorn). That exchange establishes the sale as legally sound, instead of it just being a gift which the “giver” could revoke.

Which means that if Marvel never paid SanGiacomo anything, he could get the courts to declare the contract void. He didn’t need to ask Marvel to tear up the contract; he could tell them to.

(If their situation was the same, the other writers could theoretically do the same thing. But since their works were all based on Marvel-owned characters and/or situations, they would have difficulty taking those works to another publisher.)

Now, it’s possible that Marvel’s new Publisher did - as SanGiacomo’s report implies - give Phantom Jack back to his creator out of the goodness of his heart and/or for good public relations. But it could also be a matter of letting the writer do what he had the legal right to do.

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