Permanent Damage

Wed, October 15th, 2008 at 3:38pm PDT | Updated: October 15th, 2008 at 3:40pm

Comic Books
Steven Grant, Columnist

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The recent talk of selling/merging Archaia Studio Press to/with Devil's Due or Kunoichi stirred up a little firestorm of talent panic over their perceived rights. Many rumors rapidly flew around as to what was asked and expected, and what talent had to do. The rumors themselves aren't worth dealing with, but since times are rough and we're likely to see more companies failing or merging, it's worth talent's time to figure out where they stand right now, because if they wait until their situation reaches critical mass, it'll be too late.

Caveat: while the following discusses legal matters, I'm not a lawyer. These are rough guidelines, not legal advice. I have only two bits of legal advice:

1) Consult a lawyer. Specifically a publishing or entertainment lawyer. A personal injury lawyer or escrow attorney will likely be out of their depth, even if it's your cousin Johnny who'd never charge you a cent. Lawyers are no more "lawyers" these days than a "scientist" is just a scientist; specialties exist for a reason.

2) Read your contract yourself before you sign. Slowly and fully. If anything puzzles you, ask what it means. When they tell you what it means, if you agree say, "Fine. Replace it with what you just said." You'll see problems your lawyer doesn't because even the best lawyers speak legalese, and will occasionally gloss over clauses where the legalese makes sense to them, even when the clauses leave things open to interpretation. Interpretation is the enemy, because the other party will always interpret in their favor. Interpretation is what lands you in court. In fact, clauses "they" will "explain" but won't rewrite to fit their explanation are omens of trouble ahead.

To put it another way: if the other side won't reword a contract to eliminate interpretation they're already laying the groundwork to screw you over, intentionally or otherwise. (Watch out especially for terms like "reasonable," which has no legal meaning and is totally open to interpretation, because whatever anyone wants is what's "reasonable" to them, and finding out what's "reasonable" to a judge or, given the appeals process, several judges, gets very expensive and wearing. Though signing off on it can sure make you feel like a "reasonable" being, at least until you're staring down the threat of court or arbitration for being unreasonable, AKA not doing what the other party wants.)

Amid flying rumors of an ASP sale to Devil's Due came a small panic over contract status, and reports (I've no idea how founded they were, but I'd guess if there was any basis it was overstated) that ASP talent were being pressured into swapping out their ASP contracts, which mandated creator ownership and control of properties, for Devil's Due contracts, work-for-hire affairs that leave the company owning and controlling everything, at the risk of losing their creations if they refused.

Which is nonsense.

A company can threaten to do that. Companies can threaten anything. That doesn't mean they have the power to enforce anything, only, at best, the power to sue over it, and most companies, like most freelancers, don't have the pockets to sue unless they have an iron-clad case. The only weapons most companies have under these circumstances are intimidation and disinformation, hoping talent isn't shrewd enough or confident enough to guess they're being bluffed.

But a contract is a contract is a contract.

Traditionally publishers have tended to treat contracts as formalities, proceeding whichever way they choose despite the terms. (That's another sign of impending trouble: that dreaded clause in a contract that specifies breaking of one or even many terms of the contract doesn't invalidate the contract, though it absolutely should, since what's the point of a contract whose terms can be indiscriminately broken without recourse for the injured party?) And it wasn't so long ago that publishers imposed contracts in most instances, refusing to negotiate or, often, let talent consult a lawyer. But — this is basic business law — a contract must be a mutual agreement accepted without duress by both sides. Publishers will try to wheedle all sorts of terms into contracts — making the talent contractual "owner" of the creation yet reserving all control in perpetuity to themselves, or imposing "late fees" for work delivered after schedule dates that diminishes payments with each passing time period (the way to handle that one is to ask for increasing payment for every time period the publisher fails to send out a check, as quid pro quo) — but you can negotiate anything in a contract. Publishers may have template contracts they prefer to use, but there's no such thing as a "standard" contract, despite frequent use of the phrase. But whatever fights you may have along the way, once a contract is agreed on and finalized, the contract is the contract and can't be arbitrarily changed by either party. Or a third party, unless that party is a judge.

Which means that if, say, Devil's Due buys ASP, Devil's Due has a choice. They can honor the existing contract, or they can choose not to honor the terms and void the contract, and let the property in question go. They can ask talent to exchange contracts for whatever the Devil's Due contract is, but they can't demand it. They can't make it a done deal against talent's will. There may be reasons why talent might want to trade contracts, though these days financial security shouldn't be one of them because there's no such thing as financial security in most of the business now, if there ever was, and that's every talent's own decision to make.

That's basically the sum of it: once you sign a contract, no changes can be made to that contract without your agreement. (Note, however, that you may have already consented in your original agreement, which, again, is why you always read your contract before signing.)

No publisher can withhold publication or prevent you from taking a creator-owned property elsewhere in the event of a contract dispute unless the contract already gives them that power. No publisher can reassign your property to other talents unless the contract already gives them that power. Though the business has traditionally arrogated for publishers the benefit of the doubt, no rights to any work automatically go to the publisher. They all need to be specifically signed away by you, and that includes work-for-hire. No work is work-for-hire unless those are the terms you agree to, in advance and in writing.

And if you did end up with a bad contract?

You can suck it up; the terms were obviously good enough for you once. You can spend a lot of money trying to void the contract, but that can run into a lot of money. Unless your ego rides mightily on coming out ahead on the deal, it's likely not worth the expense and effort, unless you see major value in having total control of the property back, because, don't forget, the other side has your signature on the contract. Or you could refuse to do the work and walk away, and hope they don't sue you. Which they likely won't unless your name is a very significant sales factor, and if it is then you can likely force a renegotiation. In any case, don't expect your intransigence will void the contract; your refusal to fulfill your end won't necessarily strip them of their rights in the matter. At worst, that means they can replace you on your property with other talent, and they might whether regardless of legal entitlement. At minimum in most cases they can bury your property for the length of the contract, so that even if you ultimately recover it, its market value may be considerably more marginal, if not nil. Again, it depends on contract specifics, and publishers also sometimes sign contracts that aren't in their best interests.

To reiterate: under normal circumstances, no company buying another company can unilaterally alter terms of contracts with independent contractors, and that's what comics freelancers are. That doesn't mean they never try or never succeed. For some reason, a lot of freelancers believe publishers will look out for freelancer interests (they might, but it's hardly standard practice or even a steady state condition where it does occur) and that a bad deal is better than no deal at all. All a new publisher can do is fulfill the contract terms the old publisher set up (on an existing contract), or give notice they're voiding the contract and watch the talent put the property back on the open market. Or offer a new deal and hope for the best.

But when one publisher sells out to another publisher, hoping for the best is all any of us can do. Unfortunately, that's also the moment when talent will learn if those creator-owned contracts were really creator-owned contracts after all, and if the answer's "no" (which, frankly, is more likely than not to be the case) then at least they will hopefully learn to read and question the damn contract before you sign it!

There's at least one important exception to the above: bankruptcy.

When a publisher goes bankrupt, it's anybody's ballgame. Companies going bankrupt aren't allowed to notify specific creditors (freelancers are publishers' creditors, if unpaid vouchers or royalties exist), or sell or hide assets. When publishers are doing well, they tell freelancers they're doing well. (Just not so well that page rates can be instituted and/or raised.) When publishers are doing badly, they tell freelancers they're doing well. So it can be difficult to tell when the publisher of your creator-owned comic is spiraling into financial disaster.

There are a couple warning signs: low sales figures and sustained late payment of vouchers. Again, talent is trained to be the supportive nice guy when payments are late, but when was the phone company or gas company ever nice and supportive when your bill payments get later and later? So when a publisher says, "We have a little cash flow problem, we'll get a check out as soon as it's rectified," he might be telling the truth, or he might be stalling. If he's stalling, bankruptcy is probably just a short jog down the road.

Bankruptcy exists in its own little legal hell. A bankruptcy judge is unlikely to be a copyright and trademark expert, though I'm sure there are some, but he doesn't need to be. His interest is squeezing as many proceeds from a company's assets to pay off as much as possible of the company's debts. To some extent, bankruptcy law isn't bound by other law, and bankruptcy judges can alter some contract terms. A judge can decide that creator-owned property of yours really is a company asset after all. How likely that is depends on the judge, while the odds on you, one creditor among likely many, seeing any money a publisher may owe you is pretty minimal, and dependent on how great a percentage of the overall debt yours is.

This doesn't mean a judge will make those decisions, or that they can't be appealed. But it's possible. So the optimal action for talent if the publisher of their creator-owned comic seems headed down a fiscal dead end road is get out now. Even then a judge might view that as an attempt to hide assets and negate the departure. Publisher bankruptcy is a mess, and it's best to avoid it, if possible. But avoiding it's usually next to impossible, especially if your contract specifies that non-payment doesn't void the entire contract. But if non-payment isn't grounds for voiding a contract, what should be?

Work-for-hire when a publisher buys another publisher? The same in some ways — whatever your contract terms say they can do, they can do — but you're just the hired help, pal. It's really none of your business, regardless of what you created.


Then there was Cold Angel.

That was an original project, not a revamp, but since I'm never going to do it I have no problem talking about it. It was pitched c. 1994, and tied into the fall of the Eastern bloc, too far off now to make a new pitch worthwhile, and no substitute event has appeared in the interim. The title comes from a verse in a George Mackay Brown poem that goes

The poor and the good fires are all quenched.
Now, cold angel, keep the valley
From the bedlam and cinders of a Black Pentecost

referring to British government plans to install nuclear power plants on the Orkney Islands.

At the time I fitfully pursued three goals in my writing: bringing in more political content in forms palatable to comics publishers; emphasizing "action" heroes — no powers, costumes optional — over superheroes; and drawing in cultural elements, pop and otherwise, unrelated to comics. It was perhaps not the best time for any of it. After a crazy bout in the late '80s and early '90s, DC (and most of the business) was using the success of "The Death Of Superman" to return whole hog to superhero roots, and the subject matter of American action comics officially became superheroes, superheroes and more superheroes — with heavy emphasis on reflexive references. In other words, what we've got now in mainstream comics, only then practically everyone was getting in on the act, an act that nearly caved in the business. At any rate, my approach pretty much incorporated the opposite of everything that was in vogue as the "right" approach, though odds are good it would never have found a home anytime anywhere.

The hero — I forget his name now, and the pitch is buried away on disks that are no longer immediately accessible — was a highly-trained American agent, with superior physical and analytical skills, sent behind the Iron Curtain for his first mission, in what turned out to be the waning days of the Cold War. What he doesn't know is that his intended role all along is sacrificial lamb, a diversion to draw the Reds' attention away from a different operation. All goes down exactly as planned — his contacts are killed and he's captured, to be tortured by East German secret police for (unknown to them) the disinformation he thinks is real. Then something unexpected happens: the Eastern bloc falls, then the Soviet Union itself, and the hero vanishes into the sea of humanity suddenly left to find a new direction in a radically altered Eastern Europe. As far as anyone can figure out, he's dead.

A couple years later, a masked wrestler rockets to popularity on the European circuit, prompting a well-known American promotion to bring him stateside. Meanwhile, a new costumed adventurer — Cold Angel - makes the scene, appearing seemingly at random across the country to both help those in need and, apparently, raiding secret offices of an intelligence community now left without an enemy and turning on itself. Until an investigator connects the new hero's movements with the wrestling promotion's appearances, as Cold Angel slowly pieces together why he was sacrificed on his first mission, who was being it and what the ultimate objective was, and opens a Pandora's box of intrigue doing it.

It has much of what I enjoy writing: a lone protagonist of at least initially ambiguous character outmatched by a seemingly monolithic antagonist who's apparently in the right, so that it's uncertain who's really the hero and who's the villain until more data is figured in. Lots of intrigue, misdirection and subterfuge, theoretically in the service of questioning attitudes and behavior. Theoretically. (You never really know how a project will turn out until you see it, but you take your shot.)

Not sure who was on the editorial board at the time, but I remember the verdict: too confusing, especially a lead character with several different identities. (I figured if we accept characters so reflexively taking on double identities, especially costumed identities, why not several? Not that a character with several different identities is an especially new idea — there's Marvel's Moon Knight, and The Shadow dates back to the early '30s, but this was several costumed identities, a notion I've tried unsuccessfully to play with in other places since. Though even that's presaged in things like DIAL H FOR HERO and Harvey's short-lived "Tiger-Boy" strip.) They were probably right, but this is a problem with pitches that I've mentioned before: elaborate stories may play out easily enough on the printed page, but in the super-compressed format of the pitch, elaborate quickly becomes confusing. Legal eventually put the final nail in the coffin with the revelation that someone from New Zealand had previously pitched a rejected series called "Cold Angel," and the name needed changing to ward off potential lawsuits.

I could have renamed the series and rewritten the pitch to take another run, but other things were happening to eat up my time, and it's never hard to see the writing on the wall. Aside from specific assessment of my pitch, spy fiction, which COLD ANGEL basically was despite the window dressing, has never been a big seller for comics, and at the time the fall of The Wall seemed to pronounce the genre dead. (Most publishers tend to be market contrarians only in the last ditch.) The pitch used no existing DC characters; I could have pitched it elsewhere. But by the time it had passed through the process, the business was in market freefall and its obsession with superheroes had turned into a general abhorrence of the genre, anywhere but Marvel or DC; the elements that theoretically would have made it attractive to DC made it anathema anywhere else. And companies were dropping like flies. It was a time when everyone was nailing on the storm windows and trimming back, and no one was interested in "risky" material.

So into the files it went, and now COLD ANGEL and the Wall to which it was irrevocably linked are both ancient history.


Notes from under the floorboards:

Don't forget that my ODYSSEUS THE REBEL webcomic drawn by Scott Bieser is currently running at Big Head Press, while Boom! Studios continues to run TWO GUNS online. Both are free, so you're out of excuses. Go! And Image still has the action-adventure graphic novel THE SAFEST PLACE available, with maybe Tom Mandrake's best art ever, so pester your retailer for it if you haven't got it already.

Sorry for the shortish column, but my schedule got amped up on the graphic novel and I have to kick it into high gear.

A nice little puff piece on the regrowth of Marvel's print business, as well as their expanding film division, courtesy of MONEY magazine. It's cleverly written to aggrandize American comics ("Marvel offers the only real glimpse at the economics of big-time comics publishing, because it and its main rival DC Comics together roughly split close to 80% of the market in new comic book sales", eliminating the need to bring manga sales into the equation), and slight on specifics. It's a sign of today's economic climate that the article cites Marvel's print revenue growth in the low-mid single digits as indicative of a boom, and his credibility takes a hit when, his grasp of current storylines aside, he magically invokes Superman's success during the Great Depression to suggest comics, which operate on a completely different economic scale now, will do better in bad times. That's a comforting little myth people keep repeating, but comics were a dime then and they're three bucks minimum now, and anyone hanging economic hopes on it had better start scouting out high windows now.

By the way, Marvel's AMAZING SPIDER-GIRL has been cancelled again. Isn't canceling and saving that an annual publicity stunt? Sure seems like it.

Neil Gaiman's latest children's book is available free online. Read by Neil on tour, no less.

Seems conservative Christopher Buckley, son of notorious snob conservative William F. Buckley, decided to endorse Obama this year after getting disgusted with McCain's "mean-spirited and pointless" attack ads, and subsequently was booted out of neo-con mouthpiece THE NATIONAL REVIEW, which he part-owns. Publisher Rich Lowry went so far as to declare Buckley's regular column in the magazine a "trial" run — retroactively. (It was news to Buckley.) Buckley's only the latest of a number of conservative pundits to part ways with McCain, many of them driven out by McCain's geehaw choice of Winky Palin as v-p. Winky's apparently already the Republican frontrunner for 2012, according to some Republicans...

While everyone was fretting about bailouts and who was in the Weather Underground in '70, Congress quietly passed and the Ghost signed into law an RIAA-lobbyist bill creating a "copyright czar" to, presumably, divert government resources into protecting recording industry interests. I thought Republicans were supposed to be against bigger bureaucracy...

Contrary to popular belief, Karl Marx wasn't anti-capitalist. In the Marxist scheme, capitalism was an important step in a society's development, especially in the course of industrialization, which he proposed as a necessary component to a successful Communist state. But capitalism, according to Marx, would collapse from the weight of its inherent contradictions, and the society that would emerge from the collapse would be communist. A couple of weeks ago, capitalism seemed to have collapsed, and this week... well, if you look at it from one angle, the Ghost is privatizing a lot more public money by shoving it into the banking system. But from another angle, with the government buying equity in banks, doesn't it seem a lot like the first step to nationalizing the banking system? Or internationalizing it, if nations keep working together. And a friend mentioned tonight how strange it is that Russia and China now have the strongest economies on the planet...

By the way, while a current conservative talking point blames the mortgage/credit crisis on Freddie Mac and Fannie Mae, seems they weren't the problem, only a link in the chain. The problem was private lenders like Countrywide and HSBC making reckless loans, which they then pawned off on Freddie and Fannie as good loans. Freddie and Fannie don't even make loans. The Clintons are now being credited with "forcing" Mac and Mae to buy up loans, but under Bill the buys capped at 18% of the mortgage market. Under the Ghost, who loved bragging about the housing boom as a sign of his economic miracles, the secondary buying of loans skyrocketed to 70% of the mortgage market, making subprime lending a low-risk cash cow to primary lenders, which milked it for all it was worth while leaving other financial institutions holding the sodding baby...

Heh. Seems Howard Stern has noticed that jumping to satellite radio has cut his audience considerably. Whodathunk it? For some reason pay radio has never become the rage its proponents predicted, and on a forum where no one fines or threatens to prosecute Stern's on-air antics — the sort that would regularly and publicly get the FCC on his case when he was on syndicated radio — a wide audience has simply forgotten he exists. Poor Howard...

A reader suggests the Suresh plotline on HEROES, where their lead independent scientist, gives himself superpowers via a serum that works on the pituitary gland (or is it the pineal? I forget...) but begins to, er, metamorphose into a loathsome vermin probably owes more to the '86 David Cronenberg version of THE FLY than to AMAZING SPIDER-MAN #100 (original series). Thinking about it, he's most likely right, but there's Kafka, sitting right behind all of them.

LIFE (NBC 10P Fridays) is unfortunately getting killed in its timeslot by NUMB3RS and 20/20, despite being better than either. (Unless your idea of great TV is watching Christy Brinkley's impending ex- whining, if you even remember Christy Brinkley...) Meanwhile, the new LIFE ON MARS (ABC 10P Thursdays), a beat by beat remake of the British original, is infinitely better than the initial pilot, which took huge, empty-headed Hollywood liberties with the material. But still not great. But I didn't like the Brit version much in the first place, John Simm aside; how do fans of the original like it? CBS's ELEVENTH HOUR (10P Thursdays) really is terrible, though; it's like they sat the usually very entertaining Rufus Sewell down, CLOCKWORK ORANGE-style, and screened the entire run of NUMB3RS to ensure he'd act just like David Krumholtz, then partnered him with an obnoxious cartoon supergirl for really tedious adventures.

Congratulations to Randy Johnson (presumably not the Big Unit), the first to spot last week's Comics Cover Challenge theme was "weather." Randy wishes to point your attention to pop culture site Nerve, which covers all kinds of interesting things. (I especially liked the story on McCain's lifelong attitude toward women.) Check it out.

For those who came in late, almost every week I run a Comics Cover Challenge: the covers of seven seemingly unrelated comics (thanks to The Grand Comic Book Database for the covers) from throughout comics history are spread, usually not in any particular order, down the column. But a secret theme — it could be a word, a design element, an artist... anything, really - binds them together, and the first one to e-mail me with the correct solution can promote the website of their choice, subject to my approval. IMPORTANT NEW RULE: PLEASE INCLUDE WITH YOUR GUESS THE WEBSITE YOU'D LIKE TO PROMOTE IF YOU WIN. As in most weeks, I've cleverly hidden a secret clue somewhere in the column; figure it out or be square, daddy-o. Good luck.

Available in pdf e-book form at Paper Movies and The Paper Movies Store:

TOTALLY OBVIOUS. Collecting all my "Master Of The Obvious" columns from 1998-2000, with still relevant commentary on comics, culture, creativity and the freelance life, revealing many previously unvoiced secrets behind all those things.

IMPOLITIC: A JOURNAL OF THE PLAGUE YEARS VOL 1. Collecting my political commentary of the early terror years, from Sept. 2001 through April 2005, revealing the terror behind the War On Terror.

HEAD CASES. A collection of comics scripts from work done c. 1992-1995 for various companies, including an unused script. Annotated.

Those wishing to comment should leave messages on the Permanent Damage Message Board. You can also e-mail me but the chances of a reply are next to nil these days, given my workload, though I do read all my e-mail as long as it's not trying to sell me something. IMPORTANT: Because a lot of people apparently list it in their e-address books, this account has gotten a slew of virus-laden messages lately. They're no real threat but dealing with them eats up time I don't really have, to the extent I can no longer accept unsolicited e-mail with attachments. If you want to send something via attachment (say, art samples) ask me first. If I say okay, then send. Unsolicited e-mail with attachments will be wiped from the server without being read.

IMPORTANT PUBLIC NOTICE OF COLUMN POLICY: any email received in response to a piece run in this column is considered a letter of comment available for printing in the column unless the author specifically indicates it is not intended for public consumption. Unless I check with you or the contents of your e-mail make your identity unavoidably obvious, all letters are run anonymously.

Please don't ask me how to break into the business, or who to submit work to. The answers to those questions are too mercurial for even me to keep up with.

The WHISPER NEWSLETTER is now up and running via the Yahoo groups. If you want to subscribe, click here. I'm reviewing comics sent to me — I may not like them but certainly I'll mention them — at Steven Grant c/o Permanent Damage, 2657 Windmill Pkwy #194, Henderson NV 89074, so send 'em if you want 'em mentioned, since I can't review them unless I see them. Some people have been sending press releases and cover proofs and things like that, which I enjoy getting, but I really can't do anything with them, sorry. Full comics only, though they can be photocopies rather than the published version. Make sure you include contact information for readers who want to order your book.

TAGS:  contracts, freelancers

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