TokyoPop Manga Pilots contract examined

Contracts

TokyoPop, one of the first publishers to make a big splash in publishing translated manga in North America, has a new program underway to recruit new creators and publish new material. It’s called their “Shining Stars Program”, and the Manga Pilot part of it seems to be inspired - or at least influenced - by DC Comics’ Zuda Comics venture.

Unlike Zuda, which is a recurring competition inspired - or at least influenced - by American Idol, this is more like an open focus group. TokyoPop is soliciting “pilots” for new manga series (like TV series pilots), it’s publishing online the ones it thinks have potential, and it’s asking for feedback from the public.

What I’m going to do here is similar to what I did at the dawn of Briefs on the Outside, when I translated the contracts Marvel was offering for Epic Comics into regular English, and explained what they meant. What’s different this time is that TokyoPop didn’t write this contract in Legalese; they translated it into conversational English. (I’d like to think they were inspired - or at least influenced - by the breezy style of my Epic translations, but probably not.) Regardless of the dialect, it’s legally binding, and requires some interpretation.

There are two versions of “the pact” (which is what TokyoPop is calling the contract, as part of the effort to make it less intimidating): a “solo” version for individuals, and a “duet” version for writer/artist teams. Obviously the “duet” version has room to provide information for more than one creator. The “solo” version is not - as you might assume - just for writer-artists who’ll do the whole thing themselves. On the contrary, it’s also for writers who are looking to be hooked up with artists, and artist looking to be hooked up with writers. But for the most part they are the same, with a few extra provisions to deal with the “solo” participants.

Introduction

That’s one of the points made on the first page: the contracts they’re offering are the same for everyone. There’s no special treatment for established professional creators… but no special treatment for naive first-time wannabes, either.

The TWO BASIC TERMS and A PACT FOR YOU AND US sections establish the terminology that’s going to be used in this contract. It’s their substitute for the “hereinafter referred to” language in the opening section of most contracts.

ABOUT YOU AND YOUR PROJECT

This section is pretty self-explanatory: Fill in the information it asks for.

If you’re under 18, you can still submit a pilot, but you’ll need your legal guardian to agree to the contract for you, since minors don’t have the legal authority to do that.

For the “duet” contract, you need to specify how you’re going to split up the money. Note that they’ll only pay if they accept your pilot; if they reject it, you don’t get anything.

WHAT YOU AGREE TO DO

This establishes what the content restrictions are: It has to be suitable for people who are not old enough to drive a car. If what you turn in doesn’t meet this standard… well, the first thing they’ll probably do is ask you to change it. But if you won’t, you’ll be in default of the contract, which has some serious repercussions on the section coming up about “what we (TokyoPop) agree to do”.

The “solo” version includes an extra section explaining how they’ll assign artists and writers to each other. The writer does have the right to approve the artist assignment. On the other hand, it also explains that the writer doesn’t have final say about the art itself, and explains what every comics writer-who-isn’t-the-artist needs to understand: it won’t look like the pictures in your head, and you have to accept that. Likewise, if you’re an artist and they assign a writer to you: the story is going to be different from what you were thinking.

Solo or duet, you’ll also be assigned an editor. The contract doesn’t stipulate that the editor has any specific authority, implying that you can ignore their suggestions. Which you can, but the contract doesn’t need to say this because TokyoPop has the final decision on whether to accept your pilot when it’s finished. If the editor says you should replace the monkey with a robot, you ignore the editor, and the rest of the folks at TokyoPop don’t like the money… the work might not get accepted, and you don’t get paid for it.

If you’re just-a-writer, you have to turn in a panel-by-panel script with dialog. If you’re just-an-artist, you will be expected to finish (i.e. inks and tones) the art, and do the lettering. Plus submit it in the right format, which is perfectly reasonable to expect. The deadline for completion is something the creators have a say in; if they’re more than a month late… your rights in that case will be covered later in the contract. Hold on tight.

COPYRIGHT

The next part of the contract is where you certify that you are creating this all yourself, without ripping off any other creator or copyright holder. This is a good reminder to creators of what copyright law requires, but it’s real purpose here is to cover TokyoPop’s ass: If you violate someone’s copyright, it’s your fault, not theirs. The pact gives the year 1909 as the cut-off for Public Domain, which is… oversimplifying it a bit, but it’s a workable standard. Likewise, they forbid anything involving real people, because that might possibly violate libel or slander laws, or someone’s “right of publicity”.

Like I said, this is an ass-covering move by TokyoPop, and their lawyer did a good job of spelling this out under DEFENDING YOUR WORK. It’s all on you. They claim that this is a pretty standard clause in contracts of this sort, because no publisher ever wants to be named in a copyright or defamation suit. And based on other contracts, I’ve seen, it’s true.

EXCLUSIVITY

TokyoPop doesn’t want anything that’s already been published or otherwise “exploited” elsewhere, in any form, in any medium. Not even for free. Not even a preview or an announcement. Unlike publishers who might be interested in picking up a successful or popular webcomic, they are looking for things that are completely new to the entire reading public. Likewise, they want exclusive rights to it for a period of time, which is reasonable. The term they’re looking for is 1 year after they accept it, which is also reasonable… as long as they’re actually doing something with it. That’s an issue that will come up in a bit.

WHAT WE AGREE TO DO

They’ll pay you for your pilot. Even if it never gets picked up for the whole production, if the proposal itself makes the cut to be presented online, they’ll pay you for that much. Which isn’t a half-bad arrangement, really. The vast majority of 20-something-page proposals are done “on spec”, which means the creators never get a dime for them until/unless a publisher picks up the whole thing. TokyoPop will pay for the pilot within 30 days, which is typical terms for a business working with a contractor. If you want your checks mailed directly to your silver-haired mother back in Smallville, they need that in writing.

But there is a catch: they have to approve what they receive. The good news is that they list some of the reasons they might not approve it. Many of these are common sense (at least if you’ve been reading the contract so far). In addition to the works with legal problems, they might turn it down because the story or the art is - in their judgement - not up to their standards, or it doesn’t meet their content restrictions. They say that they’ll try to work with you to fix the material if that’s possible, and there’s no reason to think they won’t. But they don’t have to. If they don’t approve it (or take more than 30 days to approve it), you’re off the hook with the exclusivity.

If they approved the first pilot, and they think the first pilot did OK (but not spectacular) so they want a second one, they can request that, for the same fee as the first. Presumably you can decline, in which case the 1-year exclusivity on the first one continues. If you do a second one, the 1-year-exclusivity starts over again as soon as they accept that one, which (for all practical purposes) includes the original pilot (since the characters, etc. are presumably the same).

RIGHTS YOU GIVE TO US

You gave them exclusive rights to sit on the material earlier in the contract, but here you give them exclusive rights to publish it. That’s to be expected.

They don’t have to pay you for the publication. That’s a little surprising. In theory they could publish your pilot in all sorts of media in huge volume, and not pay you anything beyond the fixed fee specified at the beginning of the contract. Even if they sell the material at a profit. They can even give other we sites the rights to your pilot. Also without paying you anything more for that.

They don’t have to keep your work the way you did it. They can do whatever it takes to shove your work into a cell phone screen or put it up on the silver screen

There’s been a bit of noise over the bit in this contract that requires the creator to give up the “moral rights” to their work. TokyoPop engages in a bit of anti-intellectual francophobia here, describing this as a “fancy French idea”, as if they were taking their cues from the G. W. Bush administration. To be fair, what they’re trying to do here is to take this contract out of the realm of European law - where moral rights typically apply to copyright - and limit it to traditional American law, which doesn’t specifically recognize moral rights in the same sense. It’s a bit more complex a matter than TokyoPop presents it as, however.

One of the key elements of moral rights (but not the only one) is the right to be credited for your work. TokyoPop requires that you give up this right, so that they have the freedom to publish your work in formats where giving credit would be difficult. This contract says that you are giving up this right, but the language of the contract would give you a pretty good case if they abused this freedom by not crediting you where it is easy to do so, such as on a printed copy or on a standard web site.

NEGOTIATION RIGHTS

During the year that this project is “married” to TokyoPop, they don’t want you pimping it - or even just flirting - with other parties. You can’t negotiate with anybody else to do something with the material until the pilot itself is free and clear. Obviously they want first dibs on producing an actual manga book or series from it, or to adapt it any other medium. In some cases they might want to co-own the material, which would allow them to continue it without you, but might given them an added incentive to work it into something profitable; caveat creator. They don’t claim the right to do any of that; they just want to be the only people you talk to about it during that year. They figure that they’re promoting the work during that time (or at least are planning to do so), so they want to be the first ones to take advantage of that. Even after the year of exclusivity, they demand an opportunity to match any other offers you get.

Another right they keep even after the exclusivity ends is the right to continue publishing the work. You can still take it to other publishers, but if they still have copies in stock, they can still sell them, and if they want to go back to print they can do that too.

OTHER STUFF

One nice thing is that there’s no non-disclosure requirement attached to this contract. The contract itself is being published, of course, so the terms can’t be a secret. But you don’t need to keep secret that you’ve signed it, which is not always the case.

In the event of disputes over this contract, they want to start with mediation, and then arbitration in LA, California. Mediation and arbitration are generally less painful solutions than actually going to court, so this is a perfectly understandable wish. And you can’t blame them for picking the jurisdiction they live in for it, since they don’t want to have to travel.

Summary

This contract has been lambasted on some blogs as the most heinous assault on creator rights since Jerry and Joe signed away ownership of Superman in 1938. That’s a bit of an exaggeration, to say the least. It does give TokyoPop some unusual rights, but not as bad as some folks are making them out to be. The exclusivity is unsurprising and fairly reasonable, and the abdication of the creator’s moral rights are merely Something To Think About Carefully rather than a reason to get up in arms and boycott a publisher. Like any other publishing deal, it all comes down to what you’re willing to give up in exchange for what the publisher will do for you. No one’s forcing anyone to sign anything they aren’t comfortable with.

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