The Creator's Bill of Rights: A Letter from Dave Sim 10 Below is a letter (written on September 26, 2005) from Dave Sim where Dave addresses posts from the Comicon.com forum. -Al Nickerson
Stu West I’m certainly comfortable saying that $100,000 is high enough a price to pay for a comic-book script and that it should settle all questions of ownership. I quite agree with you that $100,000 is a bad buy if you get Brother Power the Geek and a steal if you get Superman, which is why I made sure not to put anything into my script that might potentially turn out to be an extremely lucrative property. I tried to give Todd the best possible script that I could—as I say pioneering the idea of a comic-book story that also functioned as a political cartoon, while not putting anything into it that could be commercially exploited all over the place. I think maybe that’s a primary difference between a work-made-for-hire writer like Neil Gaiman and myself. I don’t second-guess these things after it’s too late to do anything about it which I think is what Neil did. I just finished three months of negotiations with DC over a three-page Fables story that came to nothing, but I didn’t start work on it—and wouldn’t start work on it—until I had a contract that I could live with that I could sign in good conscience. Since that wasn’t on offer with the Spawn 10 job, I just made sure that there wasn’t a commercial property at stake that I would regret losing control over. To use Stu West’s own frames of reference, I would maintain that as intellectual properties go Angela was a lot closer to Brother Power the Geek than to Superman and that, consequently, relative to the commercial viability of Spawn it/himself in 1993, I think Neil was adequately compensated—in fact more than adequately compensated—for every possible commercial permutation of Angela that Todd used. It is one of the things that always causes me to shake my head—dating back to the Northampton Creator’s Summit in 1988—that I don’t think work-made-for-hire creators do very much thinking about their decision-making and their choices and they aren’t very realistic about the hard realities of the marketplace but when you try and participate with them in a discussion about it they and their readers always want to make those bad choices and faulty decision-making my fault somehow, as if the fact that I’m the one identifying the problem makes me the one who created the problem in the first place. Primarily, I was trying to thank Bill Willingham for contacting me when I was being eviscerated on the Internet. I told him I would give negotiation the "old college try", taking at face value the universal belief that creator’s rights are Quantum Leaps Beyond where they were in the 1980s and always being willing to be proved wrong. I regret to say that if my recent negotiations with DC are anything to go by they are exactly where they were in the 1980s. At that time and this, negotiations with DC involve hearing how "excited and thrilled" they are to possibly be working with you. What you find is that they are "excited and thrilled" because it costs them nothing to be "excited and thrilled". I was told that Vertigo’s top rates for a pencilled and inked page are $350 per page which got pushed up to $500 in my case. I was also told that Vertigo has the lowest rates at DC and that the highest rates are paid for Wildstorm, the second-highest for DC itself. I think it’s idiotic to have three different pay scales at one company and I was going to suggest that I do the story for Vertigo but invoice Wildstorm but decided to "play it straight"—feeling that I owed Bill Willingham the "old college try" as promised—as if accepting the high-end ghetto rate DC was somehow flattering in the way that it was being portrayed to me as being. Then I got two copies of the contract and was told to return them signed to the addressee coordinator who indicated that if I had any further concerns I could address them to [name] in the legal department. Which I did. I had eight minor changes I wanted made and indicated that I was open to negotiation on the eight minor changes. At which point I was informed that the eight minor changes were impossible and that they very much regretted that we wouldn’t be working together. Well, that was my same experience from the 1980s with Paul Levitz whose idea of negotiation was: Here’s the deal. You can sign it or not sign it. Your choice. That is, we’re "thrilled and excited" that you’re willing to capitulate to us without question. If you’re not willing to capitulate to us without question then we’re no longer "thrilled and excited" and, in fact, we’re not even "less thrilled and less excited". What we are now is "completely disinterested". I think the reason that there’s no participation in this website is because, at a specific level, the freelancers are aware that that’s the case: that no progress has been made on creator’s rights since the 1980s at Marvel and DC and since working at Marvel and DC is still the holy grail of the comic-book business they have no recourse but to ignore anyone who points that out. The freelance community continues to be bought off with assurances that Marvel and DC are "thrilled and excited" to be working with them. It seems to me that getting paid $5,000 a page by Todd for writing a script and ceding all rights to him—my only previous experience with work-made-for-hire—is infinitely preferable to getting $500 a page from DC for a pencilled and inked page where there is a written contract but no basis for negotiations. If anyone out there wants to pay me to write an issue of their comic book for $5,000 a page, please feel free to contact me through this website. I can assure you that I will happily surrender all rights and implications of that story to you in perpetuity. The problem is each step of the way in these discussions I’m being asked about things that I wouldn’t do. I wouldn’t go to a publisher and ask his advice on what to do with my intellectual property as Andy Runton did with Owly. It seems to me that if you do, then the person who is being asked to give you a guiding hand—or the publisher who is paying his salary or some combination of the two—should have some stake in the property. You don’t want them to have a stake in the property? Then don’t ask them for advice. When Stu West writes "Hm. I think this might work better in thirty-page instalments. That will be 50% of your takings in perpetuity, please." Well, these are exactly the sort of misrepresentations of my viewpoints that make me think this is a really fruitless waste of my time. In the present state of the discussions ChrisW and I (who, so far anyway, are the only ones either offering suggestions or working towards an actual template agreement) have not suggested anything over 2.5%. If Stu West is offering 50% as a sensible compensation for suggesting how long the individual instalments should be in a creative work then I think Stu West is seriously out of touch with reality and I would respectfully request that he remove himself from this forum so that we can try and make some sensible progress. I think the template agreement can certainly take into account Superman and Peanuts. One of my goals in negotiating with DC back in the 1980s was to try to introduce the concept of a "Superman Agreement"—fair compensation for a property of that commercial magnitude—that "topped out" at a 50-50 split of all revenues. I was even willing to negotiate the thresholds on the assumption that even a company as greedy as DC would be happy with 50% of a given dollar amount, whether that dollar amount was a billion dollars or a trillion dollars or a quadrillion dollars. Such proved not to be the case. Whatever the dollar amount involved DC wanted most of it. It seems retrogressive to me for them to think that way but that is the way that they think. United Features did very well and continues to do very well from Peanuts on a 50-50 split with all expenses coming out of their half of the pie. I don’t see why that wouldn’t work in the comic-book field. But I have to say that I also think that spending a disproportionate amount of time talking about Superman and Batman and Peanuts and Spider-man and Mickey Mouse is largely fruitless as well given that 99.9% of the template contracts that are signed will never "earn out" .0001% of the revenues generated by any of those characters. Is it possible to just say at this point that the template agreement will "top out" at a 50-50 revenue split between the creators and the company and just leave Superman and Batman and Peanuts and Spider-man and Mickey Mouse on the back burner for the time being? I realize this is difficult since the few creators who were participating have stopped participating and fans always like to talk about marquee names but I have to say that I don’t think it’s getting us anywhere. On the subject of Deni getting a royalty for Cerebus or "Cerebus" or Cerebus. In my view I too what was a moribund fanzine name [Cerebus] and fanzine publisher name [Aardvark-Vanaheim] and cartoon mascot icon and turned them into a comic book. If at any point Deni wanted to publish a fanzine of amateur and semi-pro writing and art and call it Cerebus and use the original logo and the cartoon mascot and the name Aardvark-Vanaheim, I certainly have no objections. To be honest, I don’t know why—way back in 1977—we didn’t decide to just print issue 2 as if it was issue 1 when the originals and the printing bill cheque went missing. It’s not as if anything was "continued" or anything. It only occurred to me when I was writing the "Many Origins of Cerebus" piece for Following Cerebus No.6 which is a long time to have something not occur to you. ChrisW Having this as a template for a "share of the profits" is fine if you are talking about self-publishing, but if you’re talking about a contract with a company I think you have to factor in that the company needs to turn a profit as well. Denis Kitchen already proved that it’s unworkable to give the cartoonists all of the profits from their books. So I think it’s more sensible to discuss either the division of the cash advances paid for creative work and/or the division of the royalties payable from a creative work. I think I’m going to get jumped on again (what else is new) but I think the amount of time that goes into the creative work needs to be factored in here. If you go with a strict 50-50 Writing and Art split on revenues and the writer can do a script in a week and it takes the artist four months to draw that script whether or not the arrangement is fair, it will prove to be unworkable. If there’s two thousand dollars on the table then the writer is getting a thousand dollars a week and the artist is getting two hundred and fifty dollars a month. The writer is able to supplement his income for eleven weeks from any number of outside sources to any threshold to which he dares aspire while the artist has to forego any other revenue in the interests of staying on schedule. What usually happens is that the artist has to take a leave of absence from the title in question to find higher paying work and, ultimately, never comes back. At that point the title folds. This gets further complicated because the vast majority of titles under discussion are unprofitable to begin with. In their wildest dreams there isn’t two thousand dollars on the table. Most of the time there isn’t two hundred dollars on the table. So, as much as possible, I’d like to leave discussion of these situations aside as well. Sheer youthful enthusiasm, an unblemished VISA card, rich parents or any number of other permutations can make the improbable exist however temporarily. But, again, I hope that isn’t what is under discussion here. What I hope is under discussion is fair compensation for viable comic-book intellectual properties. In which circumstance, I think serious consideration has to be given to the writer as business entity and art agent for the partnership as acknowledgment of the fact that writing takes less time than drawing. That is, it should be part of the writer’s responsibility to do all of the bookkeeping associated with the jointly owned property as well as selling limited signed editions of prints, and the packaging and mailing of the same, keeping on on-going list of stores, fans, art patrons and so on and taking only the smallest compensation for doing so. That is, if prints are being sold for $20 each, the artist gets most of that money as a way of supplementing his income which has to stretch further than does the writer’s income and that it is therefore only fair that the writer does most of the non-creative work. Likewise the writer should be responsible for promoting the work, taking autographed copies to stores to be sold on consignment, monitoring those sales and restocking where necessary. Chris betrays his mainstream origins with all of his examples coming from Marvel and DC where the issue is very straightforward. If you work on a trademarked character, they own everything and nothing is up for negotiation. So, this is another example where I’m going to have to try to persuade people to leave Marvel and DC characters and historical examples aside. They don’t apply. If you’re foolish enough to "reboot" the Flash and what you added to the mix becomes a $400 million dollar movie, you have no more right to share in the proceeds than does the janitor in the DC office building. You can certainly cite examples of different degrees of relative importance of creative contributions but I think this can be summed up as "there are different degrees of relative importance of contributions" and when discussed relative to DC and Marvel that has nothing to do with the economic reality you are buying into where they own everything. What I am attempting to do is to discuss the nature of reality outside of an environment where the company owns everything. What I am attempting to do is to discuss the nature of the intellectual property and the characteristics inherent in that intellectual property that the creator owns. At the seminal point of existence of the intellectual property it is less important, I would maintain, who came up with name of his favourite ray-gun than it is how you propose to keep the writer and artist alive while they produce the stories of the hero and his favourite ray-gun (difficult as that may be to believe in a field that would maintain that the opposite is true: who came up with the Inhumans being considered infinitely more important than how Jack Kirby was paying off his mortgage and putting his kids through college). This is the really basic stuff that gets overlooked time and time again so I really hope that we can break through that particular fannish mental block and really examine the real world issues which obtain. Likewise Led Zeppelin demanding 90% of the box office proceeds, Jim Lee drawing your book or Alan Moore writing it. Again, can we please leave these stratospheric examples off to one side, on the back burner or buried in the backyard while we deal with the real-world issues that are at stake? Stu West Relative to the Pro/Con speech of 1993, that was fine as an idealized concept of how work-made-for-hire should be dealt with—that is, that it shouldn’t be dealt with. It was advocacy that fell on deaf ears. It is certainly the legal right of Todd McFarlane to run Spawn on the basis of work-made-for-hire and it was certainly disappointing when Image turned into a part creator ownership/part work-made-for-hire environment in my opinion. But I was pretty much alone in that opinion. Gary Groth didn’t think it relevant because to him the Image material was crap and there was no difference between work-made-for-hire crap and creator-owned crap. The goal was less crap. So he was no help. Larry Marder by becoming the coordinator of the whole thing essentially endorsed a related viewpoint: whether it’s quality or crap it needs business guidance, which completely left aside all ethical questions. What was left unanswered and what will remain unanswered, to me, was the hypothetical question: what would happen if seven top-name creators broke away from Marvel and wrote and drew their own self-published titles? The only answer we have to that is: the books would sell really, really well. But that got replaced by: what would happen if the majority of the seven top-name creators started pursuing the Hollywood dream and having other people write and draw their books for them and building studios that were cranking out lines of titles. The answer to that was: the whole thing falls apart because Rob Liefeld raids Marc Silvestri’s studio and steals "his" talent. So, I basically reached an accommodation with the residue of the initial viewpoint. Let’s take it as a given that work-made-for-hire isn’t wrong, that work-made-for-hire is a great idea. Dave’s crazy in thinking that there’s anything wrong with it. Certainly to participate in these discussions I have to stretch my thinking to the breaking point to accommodate the idea that it makes sense to sign a contract with an entity larger than yourself—whether that entity is Time-Warner or Top Cow Studios—given my solid conviction that no corporation will ever pay you enough to sue them successfully, consequently whatever you contractually agree to with them you have lost to the extent that they want you to lose it and you can only have back what they allow you to have back. Opposed to that is the universal view in the field that a contract protects you because it legally binds both parties who are signatories to it. I don’t think that’s the case. As an example, DC’s contract said that they were under no obligation to print the story or to compensate me for not printing it. There are several noted examples of that taking place at DC over the last number of years. As I said in my objection to that clause, "Do you want the artwork or don’t you? I don’t have the option of deciding to revoke your right to publish under the terms of the agreement so you shouldn’t have the right to choose not to publish without a kill fee or something similar." Rick Veitch One of the points on which my negotiations foundered was verification. You say that DC "track every copy sold (and check attached)." How do you know that? Just because they put that number on there and it’s 23,097 or something similarly odd, how do you know that that represents the number of copies sold? What I proposed to DC was that they provide the numbers to a mutually agreed upon third party along with the printing bills. The third party would agree to keep all the information confidential, all he would tell me is that the numbers added up: this is the actual expense sheet and these are the audited revenues on the Fables book. If I was being asked to buy a pig in a poke (i.e. to trust them that their numbers weren’t just pulled out of Paul Levitz’s hat) then I’d have wanted a higher rate of compensation: either a bigger advance or a larger royalty as compensation for the bad faith on their part not to provide hard evidence that I was being compensated fairly. There was also this peculiar clause in there that the royalties don’t apply to any books sold at a higher than 70% discount. Well, how many books does that amount to? 817, well, okay let’s make it a "gimme". 578,967? Uh, no, I think I’m going to be wanting to get compensated for those. Yes, I would agree with Al that locking up 15% of ancillary rights to Brat Pack doesn’t sound especially creator friendly since the Image position—as far as I understood it—was that they only negotiated to publish people’s books and had no interest in ancillary rights of any kind. I mean, I can understand it in a way because Image has got to be experiencing the same pressures that all the publishers are under: where do we make our money when we don’t have a stake in these books? Assuming that I’ll get a proposed contract for the proposed Cerebus Colour Volume I would certainly hope that they wouldn’t be suggesting in there that I give them 15% of the ancillary rights to Cerebus as part of the agreement. Again, as with DC, I’m open to negotiations which was one of the reasons that I asked Erik what Image’s attitude would be towards providing me with hard numbers on printing costs and sales. If the attitude is the same—none of your business—and providing the numbers to a third party is a non-starter (with DC, I was even willing to accept Diamond’s word—with Steve Geppi or Bill Schanes as the third party—that the figures matched up on the Diamond orders and take DC’s word on outside sales) then I don’t really see where you can call it negotiation. Also how was that worded if you were able to pick up Brat Pack and go? Did the 15% go with you or did you leave the 15% behind? Having finished the Cerebus Archive a week ago and then having to spend three days getting caught up on the mail backlog that resulted from having spent four weeks exclusively on the Archive, I am kind of at low ebb here. Al, honestly, how many hits are you getting on this website? It may just be time to admit that it isn’t time for these discussions. I’m less concerned about the non-participation of the other Bill of Rights participants—it was seventeen years ago and the vast majority of them were barely interested at the time, let alone now—than I am with the non-participation of everyone else. As far as I can see we have four active participants. It might just be time to call it a day.
Next: A letter from Dave Sim 11 A letter from Dave Sim with links to Dave's draft of his "The Creative Manifesto" and Dave's "Fables" contract with DC Comics. The Creator’s Bill of Rights main webpage