November 2012


A few days ago, a very close friend of mine in the comics world put up a post on his blog that’s getting a lot of attention.  The fellow’s Jim Zub, and you’ve probably seen him mentioned on this blog quite a bit – he writes the fantastic action fantasy series Skullkickers for Image, as well as many other great titles both online and for print.  Very talented writer and great guy.  If you don’t know his stuff, you should.

Anyway, apart from the writing side of things, Jim is also a very canny businessman.  He consistently finds unique approaches to marketing and promoting his work – for example, his latest arc of Skullkickers is relaunching with a “new #1″ titled “Uncanny Skullkickers” – it’s funny, it’s getting him press and chances are it’ll move him some additional books.  That’s the way you have to be in indie comics (and I’m firmly considering Image to be indie – some people debate this, but while Image does take some of the burden off a creator, really the lion’s share of making the book and making sure people find and care about it rests on the people making the book.)  It’s really not enough to be talented, although that’s where it all starts.  You also need to be a master huckster, smart businessman and be fairly tireless.  Getting a comics career up and running is a full-time job.

The problem, of course, is that while working in comics can take as much time as any other job, it doesn’t necessarily pay like one.  In that recent post I mentioned up above, Jim goes through the nuts and bolts (nickels and dimes, rather) of getting an indie book out the door, and what sort of return you can actually expect.  He uses a mid-range book from an Image-type publisher (so that’s lumping in publishers like IDW, Boom, etc.) as his test case, selling around 5,000 copies per month.  That’s actually a VERY successful monthly run for an indie book these days.  The biggies like Saga and Walking Dead do much more, of course, but they’re the white whales of indie comics – it’s not unusual for an indie book not to crack a thousand.  His model comes to the conclusion that after everyone takes their slice, the creators are left with a page rate that’s well under $100 – to be split between everyone – writer, artist(s), letterer, cover artist, design, etc.  The article is here, and you should really go give it a read – but then come back, because there’s more to be said about it!

Now that you’re up to speed, let me say that I don’t disagree with Jim’s conclusions in the least.  I’ve had books that have sold above the 5,000 number, and books that have sold below (sometimes WELL below), and the basic gloss of what he’s saying is correct – there’s not a ton of cash in comics at the indie book level, and it can be hard to make back your investment … if money is all you’re going for.

Jim’s post is important and really useful, in part because it covers an area that people don’t often talk about, at least not to that level of detail.  But money isn’t all comics is about.  I think there are three reasons people want to do comics: money (not necessarily getting rich, but being able to make a living from telling stories), fame or creative freedom.

Let me handle that last one first: having worked in a number of creative mediums, I can say that creating a comic is one of the purest, least-liable-to-be-fucked-with ways of telling a story out there.  The comics audience is incredibly open to new expression, and if your idea and execution are good, you’ll absolutely get eyeballs.  You also don’t have to compromise your work for financial reasons – because there really are no financial reasons.  That’s the upside.  It’s rare that someone’s going to tell you not to give your character antennae because a focus group said antennae aren’t playing well in Peoria right now.  Because nothing makes a ton of money, nothing HAS to make a ton of money, and that’s freeing.  So no matter how much money or acclaim you get, you can count on that freedom, and for many people that’s enough.

Cash and fame are more problematic.  You can get a certain level of notoriety just by continuing to put work out – there are people with long, storied careers in comics who never really have a “hit,” just like there are plenty of awesome cult bands who never break through in a big way.  But to get famous, even comics famous, you need that big book, and that’s directly linked to the money question, too.  Fortunately, I have an approach to recommend that I’ve seen succeed again and again!  Check it out:

If you want the big dough and the big name out of your indie comics career, I think you need to consider it sort of like you might approach investing in the stock market.  When investing in high-risk companies (basically new, unproven companies – just like your indie comics ideas no one’s heard of yet!) you really don’t want to put all your eggs in one basket.  The reason for this is that most companies fail.  So, you spread your capital around and hope that perhaps one of the ten (or the hundred) companies you invest in pays off in a big way.  Same principle can work for comics.  The chances are low that if you find a way to put out one book, then you’ll all of the sudden be on the map.  But if you put out five, and all of them are great – even if they appeal to different audiences – it accumulates into an overall greater probability that you might get that brass ring.  (If you don’t like the stock market analogy, swap that out for Powerball tickets – works the same way.)  Look at the early careers of guys like Josh Fialkov, Sam Humphries, Nick Spencer, Brian Michael Bendis and I’m sure a bunch more that I’m forgetting.  It wasn’t about one book, it was about all the books.

You might be thinking, “Great.  It’s hard enough to get ONE book out, and now this ass is telling me to do ten?”  Well, yeah, it’s hard.  It’s INCREDIBLY HARD.  It’s not easy to get famous, and it’s not easy to get rich.  Fortunately, making comics is easy to love, and that’ll get you through.

In my opinion, all you should NEED when you start to make comics is the freedom to create.  Comics will give that back to you in spades.  If you decide you need ducats or standing ovations, you’re setting yourself up for disappointment.  It’s okay to want those things, and work really hard for them, just don’t need them.  If you can.

I fondly remember my original intention to have this entire series – a breakdown on contracts and agreements for creators – done over the course of a few weeks.  Fortunately for me, and perhaps unfortunately for those waiting with bated breath for each chapter, I ended up getting so busy with non-blog writing that it was difficult to carve out the time to finish it up.  However, I’ve gotten enough comments, Twitter mentions and so on to know that people are actually finding this series to be pretty useful, so I’ll redouble my efforts to get it done.  Assuming things go as planned, there will be six chapters total, plus a seventh that will be composed mainly of a sample agreement or two for creators to use.

The previous four installments covered contracts in general, rights, term/termination provisions and work-for-hire.  While it’s not essential, I would suggest reading those before going through this chapter, which will discuss scary language in contracts – the sort of things you want to think twice about before agreeing to.

Before I get into those, let me first say that the “goodness” or “badness” of a contract, or any specific provision in it, is very much context-dependent.  To illustrate, let me tell you a story: in the early days of Saturday Night Live, the agreements with the performers were much like the contracts on any television show.  The actors showed up, helped to write sketches, performed, took a day to sleep and then did it all again the next week.  Anything they did outside the scope of that job wasn’t covered under the contract.  As some of those early actors started to get famous (Belushi, Murray, Chase, Radner, etc.), they began to appear in movies during the SNL summer hiatus.  Some of them went on to lucrative sitcom careers.  Others didn’t (Where Art Thou, Charlie Rocket?), but by and large, it started to become clear that SNL was a major launching pad for a career in entertainment.  Eventually, Lorne Michaels and his people realized that if they were going to be picking comedians out of obscurity and essentially handing them (some of them, anyway) multi-million dollar movie careers, then they should participate in some of that.  So these days, if you sign on at SNL, you agree to cut them in to a portion of entertainment projects you are able to get going for a specified period – even after you no longer work at the show.

You know what, though? That’s really not such a bad deal.  SNL is a proven commodity as a talent launcher.  Getting a spot on that show is like winning the lottery as far as national exposure.  So, what would have been a terrible agreement for Bill Murray to sign (because when he started on SNL it was just a scrappy variety show that no one could have predicted would go as far as it did) turns out to be pretty darn okay for a guy like Jason Sudeikis.  The point is that context is really important when dealing with contracts.  The most important thing is to understand what’s in front of you.  If you understand it, and how it might affect you, then you know what you’re going to object to.

So, some things to watch for – first, tread carefully any time you see the word “perpetual” in a contract, or you see a term that doesn’t seem to ever end.  Perpetual means, of course, forever.  If you’re granting a perpetual right, license or anything like that, it means that it’s basically gone forever absent a lawsuit alleging that the contract was invalid for some reason.  I see this a lot – people assume a contract will last for, say, the length the book’s being published, when in fact it might go on forever.  Perpetual provisions can be hidden inside other terms, and they might not be immediately obvious.  There are only a few specific reasons why a term in a contract might need to be perpetual: (1) you’re being paid money specifically to give up a right perpetually, such as in a work-for-hire agreement (see the last installment for more on that); (2) the person you’re contracting with has a valid reason for needing to be able to have that right forever (like if they’re incorporating your work into something bigger that will have a life of its own, and you’re cool with that); or (3) the person you’re contracting with needs to know that they can rely on you not doing something forever (I often see this with confidentiality clauses, where you’ll get to see specific secret information as part of the contract, and they need to know you’ll keep it secret forever).  Otherwise, it’s hard to see why any term needs to last forever – even those SNL contracts probably have a point where the show stops participating in an ex-player’s career.  There can be exceptions to every rule.  Just pay attention if you see something that’s supposed to last forever.

Next thing to watch for: deferred compensation, aka “I’ll pay you later.”  As I’ve discussed in previous chapters, there’s nothing wrong with not getting paid up front if you’re sure that’s what you want to do, but it’s an area to make sure is handled in a crystal-clear fashion in the agreement.  If you’re taking a piece of the overall revenues from a project, you want to know exactly how much you’re getting, and exactly when you’re supposed to get them.  Watch for the terms “gross” and “net” when applied to deferred pay.  If the contract says you get a share of the gross, it generally means that you get your percentage from the first dollar earned by the project.  If it’s net, it means that you get paid out of what’s left after a bunch of other expenses are paid (printing, marketing, maybe even other creators).  There are no absolutes here, and again, the most important thing is to understand what you’re agreeing to.  Anything dealing with what you’re supposed to get paid should NOT BE VAGUE.

In fact, that’s another biggie – vagueness.  A good contract is perfectly clear.  There shouldn’t be anything to hide.  Legalese has its place, but it’s not always necessary.  Watch for a contractual partner who says something like, “well, it’s not in the contract, but if this happens, then we’ll definitely do this – you’ll be fine.”  Incorrect – if something goes wrong and you end up in court, it’s almost always the contract that rules the day.  (That’s called the “four corners” rule, as in “unless it’s inside the four corners of the paper that the contract’s printed on, then whatever.”)  If someone is telling you something verbally that isn’t in the agreement, it doesn’t count.  If they mean to stick by what they’re saying, they should be happy to put it in the agreement, in writing.

Alternative dispute resolution – this is a fancy term, also called ADR, for any way of solving a disagreement in a contract besides going to court.  It primarily covers things like arbitration and mediation.  The intention is to streamline disputes, so everyone can get an answer quickly and move on with their lives.  These provisions are usually structured so that both sides waive their right to a jury trial or other court proceeding, and instead they have to do something else, like arbitrate.  In many cases, arbitration and mediation are awesome – they really do speed things up, and they can reduce some of the uncertainty and expense connected with jury trials.  However, that’s mostly true when the parties on both sides of a contract are either corporations or moneyed individuals.  The thing about ADR is that it’s still pretty expensive.  Filing an arbitration claim usually costs thousands of dollars.  In addition, if you give up your right to a standard trial, it also means you give up one of the most powerful tools for freelance creators when they need to get paid: small claims court.  In every state, you can go to small claims if you’re owed less than some threshold amount (usually $5,000-$10,000) and get a quick resolution, from a judge, that costs you almost no money.  You don’t need a lawyer, you just have to show up and present your case in plain language.  However, if you agree to an ADR clause, this right goes bye-bye.

Similar to the preceding point, watch for “choice of venue” clauses that would force you to sue the other party only in one specified location (usually the home base of the person giving you the contract.)  If you live in Miami, and the contract requires you to sue in Oregon, that can be troublesome.

Watch for the term “best efforts” – if a contract says you’ll use best efforts on a project, it seems like you’re just supposed to try really hard – do your best.  Nope.  “Best efforts” is a legal term that means you will use every ounce of energy you have to complete a project, to the exclusion of everything else in your life.  If you don’t, and the other side can prove it, then they can say you’re in breach and refuse to pay you.  Best efforts is a term that almost never has a place in a contract.  If you see it, object, and ask it to either be deleted or, at worst, amended to the phrase “commercially reasonable best efforts.”

I think I’ll stop here – there are certainly other things that can be drafted into contracts that can be troublesome, but every contract is different, too.  As I’ve tried to illustrate, one person’s horrible agreement can be fine to someone else.  The most important thing, again, is to read the whole thing, every single word, and understand what all of those words mean.  If you don’t know what you’re signing, then you deserve what you get.  Ask the other side about anything unclear, or even better, ask your own lawyer.  There are plenty of pro bono arts lawyer organizations out there that will help you for free: the biggest is Volunteer Lawyers for the Arts, but they aren’t the only ones out there.

Still deciding what to cover for the final installment, but I’m leaning towards some general contract negotiation tips.  See you then!

 

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