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The Creator's Bill of Rights:
A Letter from Dave Sim

Following is a letter I received from Dave Sim concerning the Creatorís Bill of Rights and creatorís rights in general. Iíve decided to include Daveís letter in full. Dave makes some interesting points about creatorís rights with an example of what I was working on at the time. In the Spring of 2005, I was working with Joe Staton and Nick Cuti on an E-Man and Nihilist-Man team up story for a benefit book. Dave used this project to stress some of his views. -Al Nickerson

17 March 05

Hi Al:

Thanks for your two most recent letters. Iím glad to hear that you have some forward momentum going on your research into the Creatorís Bill of Rights and that a few of the guys have agreed to speak with you. I noticed that Kevin Eastman is going to be a guest at the Big Apple Con next monthómaybe you could get him to sit down and talk there for a few minutes.

I think one of the problems that came up early in the Northampton Summit was that Steve Bissette had invited several people who were in the purely freelance category, one of whom was Scott, and that as a result what had been started by me as a process to define the ethical boundaries in creator/publisher/distributor relationshipsólargely, was I within my rights to decide to sell the first printing of High Society directly?ógot skewed into a worker vs. the corporation construct with Scottís introduction of the Bill of Rights, with Scott being the "good worker" who wanted to steer clear of any comment on publisher behaviour (he deemed any discussion along those lines to be "arrogant" on the part of creators) and Steve being the "bad worker": how do we make the publishers play ball instead of always being at their mercy? The generating situation was actually a dispute between a publisher and the retailers and the answer I was looking for was: "you can choose as the publisher of High Society to sell High Society directly to your readers but you have to suffer the backlash from the retailers who feel themselves entitled to have access through their distributor to everything that you produce." The fact that it became a Dave Sim, creator of Cerebus versus Diamond Comic Distributors dispute was a red herring. Steve Geppi was just expressing the collective retailer viewpoint on their behalf. If the retailer orders were too low to pay the printing bill, it was up to me to go into debt on behalf of the retailers and to keep the books available for whenever they decided to get around to ordering a few. Selling direct to the readers, I was able to pay off the printing bill and turn a sizeable profit in thirty days or less.

What I did was to accept that the context I was inóthe Northampton Summitówas primarily made up of freelance cartoonists and publishers who also drew and/or wrote their own comics. All of the Mirage freelancers versus Kevin and Peter, Ken Mitchroney versus Richard Pini, Michael Zulli and Stephen Murphy and Gerhard versus Dave Sim, Scott versus cat yronwode (in absentia), Steve versus DC (in absentia). Only nothing had happened to provoke any significant disputes yet. Are you kidding? Kevin and Peter are paying me $200 a page to draw the Turtles and last week I was working at MacDonaldís. So my approach was basically to acknowledge that by just getting a "one clause" acknowledgement that a cartoonist has the right to choose how his work is distributed. When you sign with Eclipse or DC, you are accepting how they distribute your work. If you want to be on newsstands, you sign with DC. And at that point, I made the conscious decision to disengage from the process which I assumedówrongly, as it turned outówould continue as a "good worker" vs. "bad worker" versus corporation debating society. Defining what it is that each person was selling when they sold their work and soon evolving into a pre-negotiation list of guidelines for any freelancer signing a contract. Here is what you own when you create this intellectual property and these are the implications you need to be aware of when you sign a contract. I still think that thatís worthwhile but I am a "minority of one" on that question today as I was in 1988. In order to really put something useful together, a lot of guys who signed bad contracts would have to be willing to admit that they signed a bad contract and to explain what bases they didnít cover and what sort of a headache it turned into from there. Matt Wagner with his Comico contract, the First Comics contracts, etc. etc. Fundamentally, what I discovered, is that most guys would rather get taken to the cleaners and have succeeding generations taken to the cleaners than to participate in any sort of warning system to keep people from getting taken to the cleaners. Itís a privacy issue with them and any contract they sign is a one-on-one intimacy thing like their marriage. What I was trying to point out was the extent to which that plays in favour of the companies. If each contract negotiation involves re-inventing the wheel for the freelancer and the company just has its standard agreement with which they cast a wide net in fishing in as many unsuspecting novices as they can, well itís not hard to see how all of these Siegel and Shuster situations come about. But, in my experience, no one was interested in doing anything about it: they just wanted to say what a shame on Siegel and Shusterís behalf and then accept that itís just going to keep happening.

Now, where I took issue with the first of Scottís pointsó"We have the right to fully own what we fully create"óthe "fullyís" were added on at Kevin and Peter and Richardís behest. There was no way that a freelancer was going to get a share of the Turtles or Elfquest. I, I think inadvisably let that go because it still meant that an inker owned his inks. You fully own the inked part of the pages that you have inked of someone elseís. It seemed obvious to me: you want to cut the inker out or the letterer out, well, you have to be able to do that physically. If Todd Klein doesnít have a stake in Sandman, well, try printing a Sandman trade without his lettering in it and see how many you sell. My idea is that if I worked on it, I own it to the extent that I can reproduce it. I wrote Spawn 10. That doesnít give me the right to sign a deal for an animated cartoon based on Spawn 10, but I think it does give me the right to reproduce that story in, say, a "Best of Dave Sim" volume. Again, Iím a "minority of one" on this. We pay arbitrary royalties to Bob Burden every time we reproduce Church & State volume II and I wouldnít think that Bob would have to ask permission if he wanted to put issue 104 of Cerebus in a Flaming Carrot trade paperback or a "Best of Bob Burden" collection. When Kitchen Sink contacted me about wanting to reproduce the Will Eisner jam story, I told them that they didnít need permission. It was Willís work that they wanted to reproduce. If Will wanted to reproduce it, that was up to Will. I had to exchange a couple of faxes while whoever-it-was tried to coerce me into giving permission in writing and I tried to just keep explaining that they didnít need my permission. Weíll be reprinting the story in Following Cerebus #4 and Iím not writing to ask permission of Will Eisnerís estate. In my view, if my work is on that page, I have the right to reproduce that page unless I formally agree otherwise in a binding legal agreement drawn up by a lawyer and witnessed by two individuals. That was one of those things that I wanted to establish as the new norm in the field. You have to sign away the rights to reproduce your work in front of a lawyer and in front of two witnesses. A contract you get in the mail isnít legally binding because it hasnít been witnessed. If you donít sign under those specific circumstances then you have the right to reproduce it without asking anyoneís permission. As they have the right to reproduce my work without asking my permission if we both worked on it. It just seems sensible to me. We have the right to fully own what we fully create, but we also have the right to partly own what we partly create. It doesnít touch directly on intellectual property issues, itís purely a physical reality centering on the physical pages. If my words are on that page, I have the right to reproduce that page, if my pencils are on that page, I have the right to reproduce that page, if my lettering is on that page, I have the right to reproduce that page. If you want to take that right away from me, fine, make me an offer. Todd paid me $100,000 for a comic-book script. For that amount of money, Todd calls the shots. I would never attempt to reproduce Spawn 10 or Turtles 8 for that reason. When you get paid tens of thousands of dollars for a comic book, the guy who paid you tens of thousands calls the shots. But as Standard Operating Procedure it makes more sense to me that if you worked on it, you have the right to reproduce it.

Iíd be curious to hear what the others would have to say about this. Iím not saying itís a non-negotiable right which is I think how a lot of people will take it and took it at the time. You want to buy my right to reproduce my own work from me, make me an offer for a specific piece. If it isnít enough in my view and Iíd rather retain the right, Iíll retain the right. Lead by example: if any of the jam story artists want to reproduce their Cerebus jam stories, I think they have the perfect right to do that. In fact, I supplied Marshall Rogers and Joe Rubinstein with negatives for that very reason. Here, now you donít have to write and ask permission if you want to reproduce these pages somewhere.

I think it makes a more sensible basis for negotiation. If youíre doing a book on spec and you get a guy to letter it for you, also on spec, and that book becomes a mega-hit, the guy who lettered it should share in the success and that should be covered at the point where the work is being developed. "Look, you canít afford my lettering rates, so as it stands I have the same right to reproduce these pages that you do. Thatís my work on there. So letís agree that however much money this comic book brings in over the next twenty years, I always get 5% of the gross. You donít want to agree to that? Fine, find someone else to letter it for free." If you donít want someone reproducing your work on collaborative pages and making money on it, then you have to pay them more than you would pay if you were just paying a page rate because you are taking something of theirs that is of greater value than the one-time right to reproduce the work. You are giving yourself exclusive right and title and that should be more expensive than shared right and title. And it seems to me that that should have been entrenched as a foundational element of the Bill of Rights. If you want to own the whole works, you have to pay a lot more for lettering and inking and pencilling and scripting than you do when the pages are jointly owned by all the participants. Likewise with the intellectual property rights. If you retain the rights to sign a movie deal, the movie deal should have to include everyone who worked on the original physical pages. Whoever the cartoonist is who came up with the Men in Black should make most of the money from the movie deal, but the lettereróunless specified otherwiseóshould get either a cut on the front end or the back end. The Hollywood producer who chose to make the film could not have read the comic book if the lettering wasnít in there. Or, if the cartoonist wants to pay a premium price for lettering to keep sole and exclusive title to it, thatís his choice as well. If I pay $15 a page we share itóif I pay $50 a page I own it.

I think this has all become more relevant because of all the comic-book movie deals. We donít have a template for what is reasonable compensation for the collaborators on an unexpected hit. We donít even have the beginnings of a dialogue on that subject even as more of these films are getting made every day.

Congratulations on doing the E-Man story with Joe Staton. Which applies very much to this situation, right? What if the story you collaborate on attracts the eye of a movie producer? This is the story that sells him on doing an E-Man movie. What compensation are you entitled to as the inker on the project? There are a number of trade-offs involved. Joe is your hero and working on the story is like a dream-come-true. But that can be a dangerous situation where you give up fundamental rights because you have stars in your eyes. Nothing wrong with that as long as you understand what it is that youíre giving up and (and this seems key to me) as long as there is some basis of understanding what it is that you own just by participating. In my view, you have the right to reproduce the story in your own publication if you choose to, you have the right to be compensated for any ancillary revenues which result from the story and you have the right to be compensated more on the front end if you choose to waive all back-end rights. I would hope that this is something Joe Staton would be interested in discussing without taking offence. One of the reasons that I see the need for an "industry norm" is so that everyone understands what everyone owns from the get-go. If we all agree that we have the right to reproduce our own artwork in a collaborative work then thereís no room for hard feelings. If Joe doesnít want you to reproduce your own work if youíre inking his work, then he has to compensate you for that. You canít just take it as a given that famous guy trumps non-famous guy. Iím the famous guy so you get exactly as many rights as Iím willing to give you and Iím not giving you any. That only works because thereís no "industry norm" that acknowledges that each personís creativity has value. If you want to exclusively own a part of someone elseís creativity, you have to compensate them for that. If youíre willing to share ownership with your collaborators, the "industry norm" would be that that is less expensive.

Starting from the top, as I see it, with yours and Joeís E-man collaboration, you would acknowledge that you have no claim to the E-man intellectual property per se. This isnít a new concept that you and Joe are working up from scratch. It was there long before you got there so there is no justification for you owning a piece of the intellectual property. At the next level down, you do have claim to a portion of the creative work called (whatever the story will be called) and all intellectual property rights attached to it. That is, if the anecdote told shows up in the E-man movie, you should be compensated for your contribution to that anecdote. At the next level down you waive all right and title to the intellectual property rights implied by the anecdote depicted, but retain the right to reproduce the artwork that you worked on. Or you can waive all right and title to the anecdote and your participation in it as well as all right to reproduce the artwork that you worked on. You and Joe have to decide what is right and fair between you. I assume that your enthusiasm for Joeís work would make you fall over and die right to the bottom rung, but I would also hope that Joeófrom his position of advantageówould see that conceding you some right and title, even if it never goes anywhere, is the right thing to do and the only way we can keep a Siegel and Shuster situation from cropping up again. We have to establish an industry norm, in my view, where everyone retains rights that they donít explicitly sell and those rights need to be explicitly decided upon. The Screenwriters Guild has this stuff drawn and quartered down to that last quarter inch and I think thatís what we need to be looking atósomething analogous in the comic-book field that clearly sets out specific values for the specific contributions in collaborative work and fair compensation for those contributions. All of which can be negotiated away, but all of which are in place and in effect unless specifically negotiated away. Archie and DC, as an example, would just have contracts that declare all aspects of the Bill of Rights null and void. Thatís fine, but at least you know what you are signing away when you sign all of your rights away because all your rights would be clearly demarcated.

Got some other letters to write. Iíll get Gerhard to e-mail this to you on Tuesday and you can just e-mail it to any interested parties.


Dave Sim

Next: Al's Letter to Dave Sim Al Nickerson's letter to Dave Sim addressing some of Dave's points on working with other comic book creators on collaborative projects.

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