wow. didn't know about the 35 year thing. good thing i used my own damn hand!
It's Tuesday! I don't know about any of you, but I look forward to Tuesday. Tuesday's are my Fridays, because of the way my work schedule is. I've just gotten off of work, rushed home, and put this up as soon as I can, all for you! I've been up all night long, slaving away, typing my little heart out, working my fingers down to the bone, and I do it with a smile on my face. Y'know why? Because I'm happy to have you! Actually, I'm privileged to have you.
And we're continuing our discussion/dissertation/dissection of self-publishing. Last week, we talked briefly about SAVING YOUR MONEY [get used to that], but more in depth about trademarks and copyrights, company names, and the types of companies you can have.
This week, we're going to talk a bit about freelance creators, co-creators, and contracts. [See how things come up time and again? Kinda like using your REAL NAME, huh?] So, let's get started.
You've made the decision to self-publish! Congratulations. You've taken your first step into a larger world, as well as ownership of your destiny. But you're a writer. You can't draw a straight line with a ruler, a laser guide, a set of instructions, and a by the numbers illustration showing you how. What do you do?
Well, you have two ways to go. I'm going to go over each way, and why you'll need to do it a certain way no matter what, because it's for your protection.
The first way you can get your art chores done is to hire a freelancer. This is totally acceptable, and in some ways, preferable, to the second way we're going to go over. Hiring a freelancer means you're not married to the person for ever and ever. They're there to do the work, they get paid, and they continue on their way.
So, you've got Asshat Comics created. [I know, I know. Go with it.] The logo you've come up with is a donkey wearing a baseball cap, with holes cut in it for the ears. The donkey is smiling. [I wanna say Donkey Kong. He's gotten no respect. It's all about Mario-] (Focus, Steven!) Okay, you've got the concept for your logo, but you can't draw it. You decide to hire someone to draw it for you.
In marches Graeme McFreelancer to do a most excellent logo for your company. [Isn't Graeme Ted's real name or something? From Bill and-] (Focus!!!) Graeme draws and draws, showing you what he's got, and you finally decide on the perfect representation of your company.
Now, without a contract, Graeme has rights to the work he's done for you. Even with a contract, unless he specifically decides to give them up, he's got rights to the work. An amendment to the copyright law that was passed in Congress in 1989 gives artists the right to terminate the use of a graphic depiction of a trademark after 35 years. (35 years? That's a long time!) No, it's not. Not at all.
Rob Liefeld [see how I did that?!] has been in this business for over 20 years. He's going to be in it for another 10-15. If he's still publishing comics [and yes, I was enjoying The Coven, but still haven't really given Supreme a try], he could be in business for longer. Now, let's say he's publishing for 36 years. If he hired a freelancer to create his logo, and the freelancer didn't sign a contract, then there's the possibility that the freelancer could tell Rob that he no longer has the right to use that logo...the logo he's been using for 36 years.
When you're publishing, you're striving for longevity. I don't know about you, but I want my characters to outlive me. I'd love for my company to outlive me. Longevity. You probably have an ongoing series or twenty that you'd love to get off the ground. You want to have the next Spider-Man. You want to be the next Dark Horse. Longevity. In order to have that longevity, that means you have to protect your creations, from the name of the company to the logo to the characters you create. If you hire a freelancer, you want to have them assign all of the rights to the physical depictions to the company. You do that in the contract.
If you want to be technical, it should go something like this:
All Work created by Freelancer shall belong exclusively to Publisher and shall be considered work made for hire for Publisher. Freelancer hereby assigns to Publisher all rights pertaining to such Work, including but not limited to all other patent rights, copyrights, and trade secret rights.
This is just a sample, folks. I'm not a lawyer, and I don't pretend to be one on TV. This is a guide, that's all. While you can write your own contracts, I don't advise it. Get a lawyer to do it for you, preferably an Entertainment Lawyer. (Sounds familiar...) [I know, right?]
By adding something like that to the contract, you're protecting yourself and your company for the work that was done for you. When hiring a freelancer, a contract is ALWAYS recommended. I don't care who they are, I don't care if the two of you went to elementary school together. Get a signed contract. Like I said before, contracts are there to define the responsibilities of both parties, and are a guide as to who is entitled to what if things go wrong.
So, hiring that freelancer for work-for-hire purposes means you're not married to them for ever and ever, amen. However, when it comes to co-creators, that's a little different.
I'm going to use myself as an example. I was Editor in Chief of Paper Dragonz, a small press publisher. Cary Kelley, the co-owner, had an idea for a superhero story, and ran it by me. I read it and saw the merit in it, but thought it needed to be expanded. He wanted my thoughts on the expansion, so I replotted it, according to my thoughts, adding what I thought was needed. It went from four issues to six. He really liked what I had to say, and offered me a co-writing, co-ownership of the title, along with the artist. I said sure.
Now, the series is finally ready to see the light of day. Our own Seb even did the first review of it, and Cary did an interview over at Jazma. I should be doing one soon, as well, but that's neither here nor there. Even though I'm the co-creator, I still view this as Cary's story. Aside from the replotting and scripting chores [and doing some thinking that turned it from six issues to seven], I didn't do much. Some characters were donated, but I have characters coming out of my pores. Cary found the artist, paid for him, and is paying for printing and prints and t-shirts and convention appearances and web presence and whatever else he can think of. Me? I get to smile and nod.
Since Cary's poured his heart and soul and finances into the project, who am I to put out my hand, looking for a cut from the sales? I'd be within my rights, sure, but would it be right?
And that could be a bone of contention between us. I haven't done much else besides some of the writing chores, and asking for money when he hasn't yet recouped his investment would be bad form on my part.
When you're talking co-creation, know that you're going to be married to the person forever when it comes to that particular project. If you're doing a co-ownership in a company setting, then it's harder to extricate yourself if things go south. Co-creators will always be there. You're always going to have to consult with them when it comes to certain matters, and eventually, money's going to come into it. (Money always comes into it.) That's part and parcel of telling stories. You want to be recognized for your ability and skill, and money is one of the ways to do that.
Do co-creators need contracts? Nope. Again, it's to define responsibilities and to guide if things go wrong., so no one really needs a contract. You could do it contract-less without hurting anything. Cary and I don't have a contract. Some people work that way. They just don't want the hassle.
For all of his talk about creators rights and such, Dave Sim is a great one for not wanting anything to do with contracts. He doesn't even go far to protect his claim to fame, Cerebus, the earth-pig born. Anyone could go write Cerebus, and he won't do anything about it, because it won't be his Cerebus. I happen to think he's right. Just because it looks like a duck and quacks like a duck... Be that as it may, there aren't many of us that are as almost obsessively unconcerned about their creations.
Anyway, back to freelancers, because this is important.
You're trying to make a name for yourself in comics, and there are only two ways to do this. There is the Right Way, and the Wrong Way. I'm going to talk about the Wrong Way first.
You hire Graeme McFreelancer to do more work for you. Graeme does the work, then you look it over and accept it. It now comes time to pay Graeme for his work, but you do one of two things: you either give an excuse to pay him later, or you go curiously silent on the matter. Then you do more of the same. And then even more of the same. Do you know what you've just done? You've wrecked everything you've tried to build.
Time to point some fingers. If you haven't heard about Rick Olney and TightLip Entertainment, then you haven't been paying attention. If you haven't gone to the Unscrewed! Site to at least look around, then you're wrong. If you haven't been reading Lying in the Gutters, then you've been living in a fantasy world. If you haven't been keeping your ear to the ground, then I haven't been doing my job.
Rick Olney scammed money from dozens of creators. He's been in Lying in the Gutters a few times over it. Atlantis Studios has been ridiculed on the Digital Webbing message boards more than thrice. Our own Marvin Wynn has had an article written up on him in Lying in the Gutters over non-payment and hiring different talent to work on the same project. Are their comic careers over? In the case of Olney, maybe. The others? Not necessarily, but they haven't done themselves any favors.
Not paying the talent you've hired for work you've accepted and have received is the single fastest way to earning yourself a black mark in the small puddle that is comics. Everyone will hear of it, because bad news travels at light speed, and good news only travels at a snail's pace. Freelancers are understanding, but they want the paid gigs, and if you've said you would pay them, they want what they are entitled to.
Getting a reputation for non-payment is an extremely hard thing to overcome. When you go to hire talent again, they could be leery of working with you, or wanting some payment up front. There are some professionals that work on the voucher system: they do the work, you inspect it, if it's accepted, they send you a voucher for the work, which you then pay. That's when they release the hi-res files to you. [No, you can't get good, print-ready books out of low-res files.] Lots of others want half up front, and half upon completion. This tells them that you're serious about hiring them, because you've put a down payment on the work. If you don't pay the second half, they still have the pages and half the money that was paid. They've lost nothing besides the second half. However, once you get that reputation, everyone's wondering if they're going to be the one who doesn't get paid. Anxiety isn't conducive for a good working relationship, and adds stress that normally wouldn't be there if you've garnered a decent reputation.
Look at Wowio. They've been slow in getting out the payments of fourth quarter 2008 to their creators. If I'm not mistaken, they were also slow in getting out the third quarter, as well. Look at Platinum. They had contracts with creators, told them they weren't getting paid for a while [breaching their contract], and then tried to gag the creators with the same contract they breached. And Wowio is now owned by Platinum. [Ask DJ Coffman about it sometime, or go to his site.]
The point is, it's now going to be more difficult for these companies to attract talent because of their payment practices. Look at the Dabel Brothers. These stories are all over the place, and if it drags on for a while, or happens more than once, the reputation in the minds of creators is set.
Non-payment is the single best way to secure a bad reputation in comics. You want to fail as a company? That's how you start. That's also how you end, if you're able to get off the ground at all.
(So what's the Right Way?)
The Right Way is anything that is above board and works. Paying creators what they are owed, on time, is a great example of the Right Way. If problems crop up, being a responsible adult and talking to the creators beforehand is the Right Way. You want to know about the Right Way? Talk to Val Staples. He was screwed out of a LOT of money [well, his company was], and he couldn't pay his talent because of it. What did Val do? He went to work, and paid them out of his own pocket, as he could. He didn't go out and spend money that was rightfully owed to others. I'm talking about not even going to the movies. That's a stand up, responsible thing to do. Business people young and old can learn a lot from Val about hard work and responsibility.
The Right Way is protecting yourself and your company from situations that could hurt it. Contracts are nothing more than insurance—you don't need them unless something goes wrong, and if you don't have one when something does, then you wish you had.
As I said, if it's above board and works, then it's the Right Way. The Right Way can be difficult, but that's the price of doing things well. It also rewards you with knowing you've done it right, and the name of your company isn't besmirched by anything.
That's it for this week. Homework is to go and find some contracts online. Print them out, and start understanding what they're saying. If you do this for yourself, you don't have to worry too much about getting someone else to interpret simple ones for you. The more pages the contract, the less simple they become, and that's when you want to get an entertainment lawyer to look at one. Decide if you want to use one for everything or not, or mix and match. The more self-sufficient you are, the better off you'll be.
And there's the bell! See you next week.
Any specific questions, ask them in this thread, and I'll answer them. If it's something of a more delicate nature, e-mail me. I check my e-mail constantly, and will do my best to get back to you within twenty-four hours, depending on the number of you who decide to flood my inbox. No attachments, please. They'll be deleted without being opened. (I know, I know, but blame the virus-makers.)
wow. didn't know about the 35 year thing. good thing i used my own damn hand!
Another insightful and informative column, there, Mr. Forbes! Well broken down!
Oh, and can I use 'Asshat Comics'? After all, you DID previously mention that company names starting with 'A' get to be in the front of the indies section of Previews!
...and 'Asshat' is such a great visual! I'm picturing a cartoon donkey in a baseball cap with a big A.H. on it.
"Living Robert Venditti's Plan B!"
Thanks for another fine article. Personally I would never go into any kind of working relationship with someone withiut a contract of some sorts. I've learned that the hard way. The idea of having such a good understanding with someone, that you never run into a situation where you wished you had written out a contract sounds great.
Unfortunately, the old saying "never go into business with friends or family" turns out to be true more than often.
If you want it, Seb, you can have it.
Just make sure you sign this contract I'm gonna send you with your own blood, in triplicate, stating that the idea was all mine, and I get 99.5% of everything that comes of it, including but not limited to all merchandise, comics, patents, movie and television rights, buddy Christ bobble-heads, any and all electronic and print media, either created now or in the future, throughout the universes, and anything else published or created under the Asshat Comics banner and logo.
Do that, and it's yours!