Contracts are an indispensable part of the business world, a world that includes comic books and the people who create them. Comics wouldn’t exist without the artistic skills and imaginations of creators. If you create a comic, you will need a contract to protect your rights in your creation. In this report, Phoenix lawyer and comic book fan Andrew Turk explains how contracts are formed and how they can protect comic book creators.
Turk points out that an oral contract can be formed by a simple request by one party to which the other party says, “Okay.” A contract is formed when there is an offer, and acceptance, and consideration—often, that means that someone agrees to do something or not to do something. If the contract is written down, it’s possible for everyone involved to go back and see what the terms were and exactly what everyone involved agreed to do or not do. A written contract makes it easier to determine the rights of all the parties to it.
What should a comic creator look to protect in a contract? Turk points out that comic creators have both intellectual and physical products to protect. The intellectual part of it is the storyline the artist has created, perhaps even a new comic book character. The physical part of it, obviously, is the artwork created by the comic book artist. And the artwork side of things may well extend beyond the original drawings. Who has the right to the drawings as reproduced in comic books? What about advertising posters? What if the comic is made into a movie? What if the storyline is the basis of a novel? “So there’s kind of a bundle of rights” involved in intellectual property, and that whole bundle is what a comic book creator will want to protect.
The place where the contract is signed may govern what law will apply if there are questions of interpretation. If the contract doesn’t provide otherwise, the law of the place where it is signed will apply. However, such contracts—especially if a large company like Marvel or DC is involved—usually provide that the law of the large company’s home state will apply and may include specific jurisdiction and venue provisions. Turk says that a comic book creator who is signing such a contract needs to be aware of those provisions. If you have a small dispute that would require you to travel to New York City, for example, and hire a New York lawyer, you will lose money enforcing your rights. A person just starting out in the comic world will probably not be able to get a large company to change that provision.
Another important issue has to do with an artist’s employment status. If you are a full-time employee of a company, they will own the work you do for them. If you are an independent contractor, Turk says, your rights will be defined by contract. The history of Superman illustrates how the rights to a creation can change. The creators of the comic, Siegel and Schuster, sold their rights initially for a few hundred dollars to DC Comics. Later, when Superman became a big hit, they sought to reacquire their rights. Moral: if you are starting out, try to sell your comic to a small company and negotiate to retain your rights.
Turk points out that a newcomer to the comic field will have little leverage with big companies in contract negotiation. It’s important to consider who will own the rights to any new characters, what are the rights for future use of the characters, and will you get paid if your storyline is adapted to a book or movie? The important thing for someone just getting started in the comics field is understanding what you are about to sign.
Bottom line: you’ll probably be well served by getting a lawyer to advise you when you are about to enter into a contractual arrangement with a publisher.
Andrew B. Turk is Senior Counsel in the Litigation and Health Care Practice Groups of Clark Hill P.L.C. in Phoenix, Arizona. He has extensive experience with health care litigation as well as with tort and insurance litigation. His practice currently emphasizes complex civil litigation, including health care, medical malpractice, and business disputes. he also has experience with wide range of commercial matters, trade secret and insurance coverage litigation and elder abuse litigation. He also frequently provides ADR services as a mediator or arbitrator. The Legal Broadcast Network is a featured network of Sequence Media Group.