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Keith Karwelies

19 September 05

Re: Fables: 1001 Nights of Snowfall

Dear Mr Karwelies:

Iím in receipt of your companyís standard GRAPHIC NOVEL FORMAT contract for work for the above-mentioned publication from Sally Oswald, Editorial Administration Coordinator dated September 13 of this year. Having looked over the document, I have some concerns, amendments and suggestions that I was wondering if you could address at your convenience by return fax to 519.576.0955:

1. Paragraph 2 (last section)

Is there some way to be more specific on thisóthat is, to establish an actual time frame between delivery of the artwork and the earliest date that revisions would be requiredó or, conversely, is it possible to leave it at "as expeditiously as possible" and assume good faith on both sides?

2. Paragraph 4 and Schedule A

I realize that it would be considered unusual in the world of work-made-for-hire for the issue of verification to be raised and I would assume that DC would not be amenable to providing me with what would be considered confidential in-house figuresóeither (in this context) as a freelance artist or as a competing publisher. Would it be possible to have actual numbers provided to a third partyósay, my accountantóif he was willing to sign a confidentiality afidavit? That is, he wouldnít tell me what the numbers are, he would just verify that the Diamond numbers match the DC numbers and that the expenses are all verifiable?

3. Paragraph 6 (a) and (b)

I assume that section (b) is in reference to my using photographs supplied by writer Bill Willingham in the production of the artwork. Does he qualify as "an officer or authorized employee"? I would certainly like to be indemnified against all potential legal liabilities arising from the use of the material. Is there some way to explicitly say "photographs" here so that it doesnít get legally confused with, say, the script or any other "material"?

4. Paragraph 7 (a)

I have to confess that I find the phrase "the purposes of this agreement" a little too open-ended a defining characteristic if you are talking about unspecified additional documents. Thereís just too much legal latitude thereólikewise with the use of the terms "necessary" and "desirable". Iím certainly open to an adjustment of the language to "mutually necessary" and "mutually desirable" so I legally have a dog in the fight if it comes down to brass tacks. Or Iím willing to look at a laundry list of terms and parameters for these hypothetical additional documents (so long as there isnít a "but not limited to" escape bolt hole attached to them) but I canít in good conscience sign an agreement saying that I agree to sign other agreements that I havenít read.

5. Paragraph 7 (b) Last line "or as DC otherwise consents in writing" should be "to which DC otherwise consents in writing."

6. Paragraph 7 (c)(i) I can understand the concern here, but Iíd really prefer to be able to reproduce the pagesóif the time should comeósequentially as part of The Art of Dave Sim or a similar title. My own governing principle is that if I worked on a page, I have the right to reproduce that page with or without consent of the copyright holder and/or collaborating artist or writer. Which cuts both ways: they have the right to reproduce my work with or without my consent if I worked on a page with them (as was the case with Kitchen Sink reproducing the "Cerebus vs. The Spirit" jam story that Will Eisner and I did. They phoned and asked my permission to reprint it and I told them they didnít need permission. Will worked on the story, so Will has the right to reproduce his own work whoever elseís work might be on the page with it). I can understand what I see as the motivation behind it: DC should have clear right and title to the 3-pager and not have to compete with me as to where interested readers gain access to it. Since DC will have right and title to the words in the balloons and captions (having an agreement to that effect with Bill Willingham), Iím willing to offer a compromise: that I be allowed to reproduce the artwork sequentially without the words in the captions and the word balloons and that there be an agreed-upon time constraint prior to those rights accruing to me which would take in the primary period of marketability for the Fables bookóa year from the date of publication or sixteen months, Iím pretty flexible on the length of time since I canít foresee any situation where I would use the work over the course of the next three years, anyway.

Iíd also be willing to commit to adding a line of type to each page acknowledging DCís sole ownership and jurisdiction and indicating that publication of the pages herein does not imply (nor should it be inferred) as infringing on that sole ownership and jurisdiction. "So help me God" if that would help.

7. Paragraph 9 (c) Iíd like to have a copy of DCís standard royalty policy for comic magazines forwarded to me and attached to this agreement if itís even hypothetically applicable.

8. Paragraphs 10 & 13 I have a certain amount of trouble with a "right not to publish" being built in without my getting a reciprocal "denial of the right to publish". It seems to me a case of: Do you want the work or donít you? In the same sense that I have to make up my mind: Do you want to work with DC or donít you? If I canít legally change my mindóand under the terms of the agreement, I canítóthen I donít think you should be able to either. Iíll be happy to waive the right to sue for damages if DC is committed to publishing the work within a given time frame after itís been delivered and even grant DC the flexibility to change formats in mid-stream. That is, let you publish it as a back-up in the Fables comic book rather than as part of a graphic novel if the graphic novel is deemed not to be economically viable or some other such eventuality. But if thereís "a right not to publish" then I think a kill fee would need to be negotiated or a reversion of the rights to myself and Bill Willingham and we can find somewhere else to publish it.

9. Paragraph 14 I would prefer that this be replaced with a reciprocal jurisdiction clause. That is, if I want to sue you, I have to do in New York and if you want to sue me, you have to do it in Ontario.

Okay, those are the concerns that I have and the amendments that Iím suggesting where I think thereís encroachment onto my side of the bargaining field. I am open to further negotiation on each of the above points within the limited amount of time available. We might not be able to get much further in negotiations but all I really promised Bill is that I would do my best to bargain in good faith which is what Iíve tried to do here. I hope you agree and can provide as many reasonable counter-proposals and/or trade-offs as possible.

(Dave Sim)
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