A Letter from Dave Sim 2
Following is a second letter I received from Dave Sim concerning The Creator’s Bill of Rights and creator’s rights in general. With this letter, Dave comments on the other Bill’s founders’ interviews and chats. Also, in this letter Dave includes a conversation he started with Erik Larson concerning creator’s rights. As with Dave’s first letter about The Creator’s Bill of Rights, I’ve decided to include Dave’s letter in full. -Al Nickerson
23 April 05
Some responses to the interviews that you sent me, starting with Scott McCloud’s:
"It was mostly in response to the Creative Manifesto which had been put together by the first of those summits. I’m not sure who had penned the original."
The first draft of the Creative Manifesto was a communal effort on the part of Kevin Eastman, Pete Laird, Steve Bissette, John Totelben, Michael Zulli and Stephen Murphy and myself—with supplemental input from Alan Moore, Frank Miller, Dave Gibbons, Steven Grant and others—in response to Diamond raising the possibility of not carrying the Puma Blues because I was selling the High Society trade direct to Cerebus readers and not offering it through the direct market. Essentially the Manifesto was an attempt to determine what rights and obligations each level of the direct market "food chain" had in dealing with each other. This was the first time that a creator who was also a publisher had had a serious contretemps in dealing with a distributor. As a publisher, it seemed to me that what I had found was a "more direct market" which allowed me to make enough money per book to pay the largest printing bill I had ever had to pay up to that time. It wasn’t that I hadn’t offered the book to the direct market—I had—but the direct market had ordered a very small number of copies, too small to pay the printing bill. In effect what they were saying was: we want you to assume all of the debt and make the books available to us and we’ll order them as we need them. Since the stores had always, in my experience, under-ordered Cerebus, it was an open-ended question as to how long it was going to take to sell six thousand copies of a $25 comic book through them. There were no $25 comic books being sold at the time and, much like today, virtually all of the retailers’ attentions were taken up with Marvel and DC so I decided to offer the books direct to the Cerebus readers and, as a result, instead of coming up short on the printing bill, I turned a $100,000 profit. It was particularly bothersome at the time because the distributors and the stores were always telling me "it’s just business" when they would cut their orders or demand a higher discount or register whatever other complaint they had and use whatever leverage they had to make me toe the line. But when the shoe was on the other foot, they presented it as a loyalty thing. I was being disloyal to the stores by selling direct to my own readers. Well, why was it disloyal for me to sell direct to my readers when it was "just business" when the distributors would cut their orders or insist on a higher discount or demand that we pay shipping or whatever else? To me, I had made a no-brainer of a business decision. Go into debt to print the trade paperback and then sit and wait for the stores to order them two or three at a time or sell all six thousand in a month or so and turn a $100,000 profit. Basically, the universal retailer position was—or seemed to be—that I was obligated to sell them everything that I published no matter how few copies they ordered. I basically pulled Kevin and Peter into the discussion—the only other self-publishers who were in the category of being a significant profit centre for Diamond—as a means of determining if that was a valid criticism and, if it wasn’t, to have more than just my own voice opposing it because at that point it was "Dave against everyone and everyone against Dave". The Creative Manifesto attempted to draw lines between what a creator-publisher could do and what he should do. It was entirely legal for me to sell my book direct to the readers, the question was: was it ethical to do so? I was giving the retailer position the benefit of the doubt: they might be right that I was behaving unethically, in which case I was willing to revisit the question but only if some consensus could be achieved as to where my ethical obligations to the retailers began and ended. In my own view—since this situation had never come up before and was likely to come up again for future self-publishers—I couldn’t just cave in because it would establish a precedent that in effect would say, "A creator-publisher must always do what the retailers want no matter how unsound it is from the self-publisher’s business standpoint." If that was the foundation of the retailer position then I would have to argue strenuously on behalf of all future creator-publishers to keep from having the retailers use me as the template. "Dave caved in and gave us the books, so that means you have to, too. It’s how the direct market does business." Kevin and Peter understood what I was talking about and also understood that they had a lot more to lose than I did if a precedent was established since they were just beginning to branch out into the real world. What if the retailers decided that they had to be offered everything with the Turtles on it on direct market terms or they would stop distributing the Turtles comic books? That much retailer control was unacceptable to me and to Kevin and Peter, but how much control should the retailers have and how much control should the distributors have and how much should we have? The issue was a dispute about how business was conducted between creator-publishers and distributors and retailers. It became complicated because we had to dissect the problem into its component parts in a way that was nearly Biblical: "In the beginning there is the Work…" and then to follow the Work from the point of creation through to the time that it’s purchased by a consumer. The fact that Steve Bissette, a DC freelancer, came into the discussion early on meant that we got distracted from what we were talking about and drawn into a much larger discussion. I was willing participate in the larger discussion as long as the larger discussion also addressed the question of the borderline between creating, publishing and distributing. When Scott showed up with his Bill of Rights it made the process a lot simpler from my standpoint. All I had to do was to get a right included that said "We have the right to control the means of distribution of our work." That got watered down to "We have the right to choose the means of distribution of our work" which was fine by me. That was the answer that I had been looking for when the process got started. I had the right to choose to sell the High Society trade paperback direct to my own readers. Kevin and Peter promptly published a hardcover of the complete Turtles and sold it direct to their readers, helping to reinforce the point—we have the right to do this. Because Scott was and still is a freelancer who has no contact with the distribution side he never understood that there is a meeting place between the creative and distribution side of the comic-book field if you publish your own work and that a line had to be drawn in the sand to keep the retailers and distributors from establishing rules that said that "creator-publishers must always do what retailers and distributors tell them to do."
I don’t think the Bill has any particular relevance to self-publishers or artists putting up their own webcomics because they don’t really face that issue [of losing the rights to their creations] at all.
Scott’s right that self-publishers and webcomics guys don’t tend to face the loss of their rights to their characters through contractual trickery as do freelancers, but that doesn’t mean that there aren’t threats to them in other directions. This is what he didn’t understand about the dispute with Diamond from the beginning. Had it been established that the retailer and distributor viewpoint must always prevail where it conflicts with the viewpoint of the creator-publisher the net effect would have been the same: the loss of fundamental rights that would be difficult if not impossible to recover once the precedent had been set.
I thought of the Bill as more of a document to address the relationship of people who chose, for whatever reason, to work with a third party to get their comics published.
Again, Scott never understood that the third party in this case was the distributors/retailers and that the fundamental question was "am I obligated to always have a third party in distributing my work if I have used a third party on other occasions?" By making "We have the right to choose the means of distribution of our work" into one of the rights, whether he was aware of it or not, Scott was saying, "No, you are not under any obligation to always distribute your work through a third party or through the same third party."
If you’re just sitting in your bathrobe at the keyboard pushing your comics and selling t-shirts, the Bill has nothing to do with anything.
I beg to differ. There you are definitely "choosing your means of distribution." The question would come in forcefully if a webcomic in published form suddenly became a Turtles-sized hit and the creator chose to continue to sell most of his work online directly to his readers. Had I caved in back in 1988, the retailers would have a precedent to say that they won’t carry any of the guy’s work unless they can carry all of his work. No, he has the right to choose what he offers to the direct market and what he chooses to sell direct to his own readers.
If you distribute it yourself, then you have absolute control, but if you enter into an agreement with a third party then that control is contractual really. The idea of direct control over distribution, if it’s a third party doing the distributing…seemed a little odd. I mean it’s not as if you’re going to be standing in the Diamond warehouse telling them where to put the boxes, either this way or that way.
Well, no, certainly not. That’s an internal matter at Diamond. The same as Diamond has no place in telling me how to clean my brushes or what art board to use. Scott’s either being disingenuous here or is still seriously ignorant of the fact that there are points of intersection between creating, publishing and distributing, turf that can only be defended by setting precedents such as we set by indicating that just because Diamond distributes sixteen of our trade paperbacks that doesn’t mean Diamond has to be allowed to distribute everything that we publish.
Well the Bill wouldn’t have made things totally different [had it existed in the Golden Age or at Marvel in the 1960’s]. If artists had collectively realized how much power they had and acted in concert with one another that would have made a difference.
The historical attempts to form guilds and unions in the comic-book field which all failed miserably would tend to refute this. Freelancers and loners like comic-book artists tend to be justifiably suspicious of Marxism as expressed in the form of trade unions and guilds. The consensus view always emerges that in forming a trade union or a guild all you do is add your union executive to your publisher as people with their hands in your pockets siphoning off an arbitrary percentage of your wages and royalties. I think if Jack Kirby and Joe Simon had assumed partial or full control of Crestwood Publications when it was determined that they were owed $130,000 (instead of settling as they did for $3,000) and had therefore become the first of the creator-publishers, that would have made a difference [The Comic Book Makers Joe Simon, pages 151, 161-162]
You know, it all comes down to the contract. "Creator-owned" is like "All Natural" or "Organic". [Laughs] You can put it on the bottle, but that doesn’t tell you anything about the contents until you see them all listed.
Yes, this is very astutely put. I think in this Internet age it would be worth having a website somewhere where people could anonymously post the contracts that they’re presented with and have some comic fan lawyers who were willing, pro bono, to post their best assessment of where the loopholes and pitfalls and snares are. As you say, the Epic creator-owned contract "looked fair" and as Scott says, "Well, they all look fair until you pay close attention to them." What you need is the level of expertise to translate the specific terms of the contract into understandable English and to present the full implications of the phraseology as well as indications of how the phraseology can be changed to close the loopholes and for that you need a lawyer. There is nothing wrong with knowingly signing away fundamental rights to a creative work as long as you understand in plain English what it is that you’re signing away and as long as you understand Dave Sim’s First Rule of Contractual Law: ‘No company will ever pay you enough to sue them successfully so their interpretation of what your contract says is the one that will prevail." And Dave Sim’s Second Rule of Contractual Law: "Even if you are willing to go bankrupt suing a company for money owed to you, 90% of the money you win in any judgement will be needed to pay your legal bills."
It’s kind of funny that Scott and Rick Veitch both refer to DC’s parent company as Warner Bros. rather than the more accurate AOL-Time-Warner. It hasn’t been called Warner Bros. since the late 1960s when it devoured the Kinney conglomerate. It is several orders of magnitude larger and more monolithic on the corporate scale today than it was in 1968 when it was called Warner Bros. Mistaking the DC of 1968 for the DC of 2005 seems to me to exhibit, if Scott and Rick will forgive my bluntness, a core level of foolishness about where we are now relative to the corporate world as opposed to where we were in 1968.
I knew loads of artists and writers who just assumed if they were being paid the company owned whatever they did. This was especially the situation at the big comic book companies who had a history of assuming everything; often without any paper being passed.
It’s a good point that people forget. It’s something of a cliché that creators reiterate decade after decade that they know what they’re doing—they’re going in to the situation of working on corporate controlled comic books with their eyes open and understand that the companies need to maintain absolute control over the characters and all their fiscal implications in order to remain viable. A good example is Marv Wolfman who was one of the more ardent company apologists for years along exactly those lines until Blade got turned into a multiple multi-million dollar Hollywood blockbuster franchise, at which point he changed his position 180 degrees and went into court challenging Marvel with the same arguments that he had spent several decades dismissing as being completely invalid. As I mentioned to you on the phone, Al, most of the time young guys have stars in their eyes at the prospect of drawing Thor or writing Batman and they’ll sign anything just to get in the door at Marvel or DC. That’s where and how the trouble starts.
Tundra was originally set up along the Bill’s guidelines and [Kevin] wasn’t able to make it work.
Tundra was definitely a cautionary tale but it seems as if Rick is saying here that Tundra didn’t work because Kevin set it up along the lines of the Bill of Rights. Tundra failed because Kevin never met a comic book he didn’t want to publish and he paid guys who were predominantly freelancers enormous sums of money to produce work and then had no leverage to assure that they did actually produce the work. As I said to him when he made his trip to Kitchener to outline his plans for Tundra, "Kevin—there’s a right way to lose six million dollars and there’s a wrong way to lose six million dollars and it seems to me that this is the wrong way." Someone once mentioned to me that Kevin never understood what comic book creators are like because he and Pete were so astronomically successful right out of the gate. The Image partners were all freelancers who understood that you never pay for work until you get it or otherwise you aren’t likely to get it. The only reason most Marvel and DC freelancers and Image creators actually turn in their work is that they don’t get paid until they do. The productivity track record of people working at Image is still abysmal but it was and is a lot better than those under contract at Tundra.
Some self-publishers, most notably the Image group, became work-for-hire shops themselves.
Yes. To me, this is the reason that you have to be careful when you bandy about terms like "self-publisher". A self-publisher is someone who publishes his own creative work either primarily or exclusively. Under that definition, Image was a self-publishing collective for about six months when it quickly turned into just another publishing house with the notable difference that outside creators were free to come and go from Image Central with their intellectual properties. It is rumoured that that isn’t the case with some titles and books published by the individual partners’ studios—that they were buying intellectual properties outright the same as Marvel and DC do. Again, it seems to me that the only way to determine the nature of the various companies is either for them to release their standard contracts voluntarily or to have those contracts posted on the Internet anonymously. Otherwise we’ll continue to have the situation of guys signing contracts that "look good" but which have hidden stumbling blocks and pitfalls that tend not to reveal themselves until long after the contract has been signed.
Detailing basic ownership principles is always relevant.
Yes. Very well said. If anything I think the Bill of Rights doesn’t go far enough in defining exactly how many rights you have that are yours to give up or sell off. Working backwards from the fine print of one of the companies’ standard agreements and getting input from as many contract signatories as possible and lawyers with expertise in American contract law documenting what rights they didn’t protect and how they found out they had lost those rights in the long run seems the best way to flesh out the Bill of Rights and to make it more relevant to Scott McCloud’s freelance end of the comic-book field.
Probably the best way to increase its relevance is to publicize it. Get it into the hands of the new generation rising so they don’t get hustled.
I’d think that Rick Veitch would be pretty well positioned to do this with his Comicon website. At least post these interviews and comments and solicit further discussion. I do think that anonymity is key. No one wants to think that the company is going to find out that they leaked their contract and, perhaps more relevant, no one wants to admit publicly that they signed away more than they wanted to. But, unless we start talking publicly about specific contracts and specific clauses in those contracts that need to be watched for, then I have to assume that we’re right back where we were in the 1970’s with the companies basically locking up every right that it isn’t nailed down and arbitrarily paying the creative teams widely differing amounts for their work. As Rick says, "Getting real upfront money, health insurance, royalties, reprint fees and sharing in film and TV revenue is a reasonable way to work." I’d add foreign licensing and foreign reprint rights to that list, but I also think that it needs some specifics. There’s no reason that creator A shouldn’t get a bigger advance than creator B, but I also think there’s no reason that creator B shouldn’t have an idea of what the range is. If one complete novice gets $8,000 and another complete novice gets $2,000 for comparable projects then I think that raises some basic questions of inherent fairness. In the same way that I think the amounts paid could—and should—vary according to how many rights are being purchased. As an example, when Todd McFarlane paid me $100,000 to write Spawn 10, to me that put it into the category of ownership of absolutely all rights to that particular story. I think there should be minimum amounts that you are required to pay if you are acquiring all rights (certainly less than $100,000 for a twenty-two page script!) and minimum amounts that you are required to pay if you are acquiring no rights. So far as I know that’s already the basis of the Image Central contract. No upfront money and a basic fee charged against your book’s revenues, but you retain all rights to your creative property. Different creators are going to be drawn to different deals. If you go for a contract which stipulates that the company acquires all rights and you get paid $20,000 up front then you shouldn’t be coming back whining if a multi-million dollar hit movie gets made. You got your $20,000 and you knew what you were selling. Much is made of the fact that Siegel and Shuster only got $140 for the rights to Superman. What is overlooked is that they got several hundred thousand dollars over the next number of years of what was basic largesse on the part of DC and they only sued DC when they had run through the several hundred thousand dollars they got paid. Well, that doesn’t seem entirely equitable to me either. You can’t have your cake and eat it too. If you sell the rights to your property and get paid the equivalent of five years’ salary for an average Joe (or three years’ salary which was roughly what DC offered me for Cerebus in the 1980s), it’s not exactly justifiable to then complain when the money doesn’t last you the rest of your life. You have to make your choices. Take a smaller dollar amount in exchange for a long-term stake in the property—basically sharing the risk with the company. The big companies basically offer the smallest large wads of cash that they can in the interest of acquiring a long-term property and dealing you out of the decision-making process. If you sell them your character for $100,000 and a 5% royalty on every book sold and every merchandising deal cut then basically what you are betting is that your character will never be worth more than $100,000 or your character will be worth so many billions of dollars that a 5% royalty will be more than enough compensation for your loss of control over it. Neither is very likely to happen and anything in between is going to make you feel foolish once you’ve spent the $100,000 and your royalty cheques are for amounts like $37.80 every three or four months and you have no say in how your character is handled.
Only that the summit was the beginning of the end for the Aardvark/Turtles coalition which had showed so much promise. The Turtles were moving into the popular culture so Kevin (Eastman) and Pete (Laird) had a much different set of goals than they’d started out with doing their comic. Dave was pretty much of a self-publishing purist, of course, so cracks began to develop between them in Northampton.
Well, this is true as far as it goes, which unfortunately isn’t very far. The problem as I saw—and see it—is that, because the Bill came about because of a very large discussion about ethics (again, there was nothing illegal about my selling High Society direct, the only question was ‘Was it ethical to do so?’) we got into awkward areas very quickly by discussing things on the same level of ethics as opposed to legalities. I had agreed to do a Turtles action figure of Cerebus but had misunderstood the level of clout that Kevin and Peter had with Playmates toys. I thought they’d just say, "hey, do some of these Cerebus figures just for laughs" and Playmates Toys would ask "how high?" on the way up. Instead I heard from Kevin and Peter’s agent who wanted me to sign a contract with Playmates Toys which I had no intention of doing on the basis of "No company will pay you enough money to sue them successfully". I thought Kevin and Peter had unethically changed the terms of a "for fun" action figure crossover and they thought I had unethically welched on a verbal agreement to do a Cerebus figure. Then we got into problem areas with Ryan Brown and Stephen Murphy and everyone else who was doing Turtles books on a work-made-for-hire basis. Was it ethical to just pay them a page rate or a page rate and royalties but not be responsible for things like health care and what-not? I found it significant that when everyone wrote down their names and addresses to get further information on future summits and the on-going discussion, Peter insisted that all of the Turtles freelancers be listed as "c/o Mirage Studios" at the Mirage Studios address. There was a lot of debate about what rights Gerhard had which sort of blew up in their faces when I said that as far as I was concerned Gerhard had the right to reproduce his own work. If he wanted to do his own Cerebus trade paperbacks he had the right to do that without asking my permission because his work was on the printed pages and—because the book was still in progress—he also had the right to get someone to write and draw his Cerebus comic that he would do the backgrounds on. There was no way that Kevin and Peter—or Richard Pini who was also at the Northampton summit—were going to agree with that, but to me it was a basic ethical question. Gerhard started out getting a page rate, then he became a salaried employee (like me) and then he became a 40% partner in the company. Again, there would have been nothing illegal about just paying him $80 a page and getting him to sign a contract saying that I own everything he did, but to me it would have been unethical and it would have been progressively more unethical the more work that he did. When you have tied your fortunes to one book, as Gerhard had, and that situation goes on for more than two decades, you are—again ethically, not legally—entitled to share in the success of that book. I think it would be worth framing that in more specific terms—how long you have to work on an established book before you get a share in the revenues, how large that share should be after how long a period of time and at what point you should get join ownership, and so on. But there was no interest in even discussing it. In fact I was just laughed at for bringing it up and Gerhard was treated as a joke by everyone else whenever I cited our business relationship as the most ethical way to do business in a creative partnership. Which I thought was very short-sighted. A successful comic book intellectual property is a long-term proposition, stretching over the course of decades. It doesn’t make sense to me to treat a decades-long creative participation in the same way you do a freelance assignment that someone knocks out over a weekend which, it seemed to me was what Kevin and Peter and Richard Pini chose to do with Mirage Studios and Warp Graphics. In that sense, yes, definitely there was a schism and there’s no doubt in my mind that it was seen as my fault because I wasn’t flexible enough or I was too much of a purist. But, again, if I had caved in on the point and said that "Ethically it doesn’t matter how you treat someone working on your intellectual property. That’s up to you because it’s your intellectual property," which was the consensus view, that would’ve meant that there was no one representing what I considered to be the more ethical position. It would certainly have been more lucrative on my part to just ‘go along with the consensus’: I could’ve kept my own salary and most of Gerhard’s as well. But, I suspect that in that case Gerhard wouldn’t have stuck around until issue 300. How many people in 2004 were still working on Elfquest and the Turtles who were working on them in 1988? This happened a lot. Steve Bissette used to say that I just went around forming these coalitions and then blowing them up. I think the record shows that I would stick to what I considered the more ethical position and when people saw that I couldn’t be persuaded to see things their way, they abandoned all discussions with me. And the reason, most times, that they abandoned all discussions with me was because they didn’t want to think of themselves as people who made unethical or less ethical choices. The point to me was always the overriding ethic that was under discussion, not how unhappy it made someone else feel when I disagreed with them or how happy it would make them feel if I would abandon my position and agree with them. It didn’t matter to me who was happy with me or unhappy with me. I had a larger obligation to make sure that I was setting what I saw as good ethical precedents for future creator-publishers to follow or to ignore as they chose.
‘Between the cowards who’d called me regularly to bitch about conditions in the bottle-necked post implosion market but REFUSED to go on record, and the high-echelon former allies in many hard-won battles who were placidly accepting contract terms that made 1983 work-for-hire terms look rosy (and for creator/publishers like Jim Lee, to boot!), I was so disgusted by the whole scene that I abandoned the article and gave further serious thought to the key question, "Should I stay or should I go?"
So, yes, I tend to see the article he gave up on as his excuse for not delivering what he had promised and what would have been—and could still be—an extremely lucrative book. But, taking it at face value I’d have to say that if it really hit him that hard he was taking other people too seriously. Most people don’t want to talk about ethical conundrums. It just makes them feel bad. Most people prefer to whine and encourage other people to whine. One of the reasons that people don’t stay in contact with me for very long is because I tend to give them honest reactions to whatever they’re whining about as I’ve done here. Steve blew it by not staying self-disciplined and doing the book that he knows he was born to do. He let himself be distracted by everything under the sun. But that’s Steve’s fault, not the fault of everything under the sun.
Yes. Dave Sim held a summit. He used the term,"summit". Dave loves terms like that.
The reason I used the term ‘summit’ was because that was where I saw the problems entering in. Kevin and Peter and I existed at the highest point where creativity merged with publishing and where it intersected with distribution. It seemed to me that we were obligated to figure out what the capstone on the pyramid was going to look like to spare a lot of grief for those who I figured would be coming after us.
As I recall, Dave was sponsoring all of this, and was working to keep this core group of activists and potential activists engaged.
As I explained above, my interest was in the meeting place of creativity, publishing and distribution and where the obligations and rights of the one entity stopped and the other began. I figured Michael and Stephen should be there because it was their book that was under threat and Bissette and Totelben should be there because they were going to be doing Taboo through Aardvark-Vanaheim and Kevin and Peter because they were the only ones in the same creator-publisher situation. I wasn’t interested in activists, I was interested in people who were affected by the problem.
The Manifesto was a sprawl, y’know? It was well-intentioned but all over the place. I’ll just give you one example of the presumptions we were tripping over. In some draft of the Manifesto, Dave wanted the statement that all creators have a right to sufficient health care. Now, we Americans found that laughable. We were like, "Dave, we don’t have any health care." [laughs]
Well, in all fairness, I wasn’t talking about the Marxist form of health care we have in Canada. Ger and I both have supplemental health care coverage through an insurance company, which I think is just a basic grown-up thing to have. As Rick points out, health insurance is a big selling point for the Big Company Contract these days, so I don’t think it’s quite as laughable as Steve pretends it is. I think grown-ups should have insurance and health insurance. Buy five fewer beers a week or a few less horror videos and put the money towards health insurance. Also, the Manifesto was a sprawl largely because of Bissette and Totelben because they were coming from a freelancer background—and to a degree with Kevin and Peter because they were starting to deal with their own freelancers—so they wanted to discuss the overall shape of the comic-book industry rather than staying focused on where the demarcation existed between creator-publisher obligations and rights and distributor obligations and rights. As I said, I had no problem opening the whole thing up to these larger questions as long as I got an answer to my question out of it. It was only later when Steve was publishing Taboo on his own that he actually got interested in the question of demarcation—in that case where did a publishers obligations and rights leave off and where did a freelancer’s obligations and rights begin?—and the end of his friendship with Alan Moore was a good example. Steve was publishing the serialized "From Hell" in Taboo and wanted—needed, more like—to engage Alan in the questions that were coming up about ancillary rights. People were contacting Steve about reprinting the story and doing other things and he was asking Alan what he wanted to do and Alan was saying, "You do whatever you think is best, Steve." And Steve realized that that was, yes, unethical. It was Alan’s work, it was a matter of what Alan wanted done with it, not Steve. For Steve to make the decisions was to cross the line from being Alan’s publisher to controlling more than the first North American rights he was paying for and to be guilty of infringing on Alan’s rights as the proprietor of the material. Steve could have made a lot of money representing himself as the proprietor of "From Hell" just by going along—with Alan’s blessing—but he realized that that was unethical. There were things that, ethically, Alan and Eddie Campbell needed to decide between them about their own work. If they wanted to sell the whole thing to DC for a mess of pottage, that was up to them not up to Steve. When Steve used the example as an illustration of these issues of demarcation in The Comics Journal Alan got all emotional and made his "never darken my crypt" phone call to Steve. So Steve found out what I had found out: people react emotionally to ethical questions as a means of avoiding addressing ethical questions. I do, however, wish that Steve would’ve just taken it at face value as I’ve tried to do and to just accept that you’re never going to have very many friends but you will, at least, have done the right thing in terms of setting precedents. Steve himself took the reaction too personally instead of realizing that—looking on the bright side, as I did when the field shunned me for different reasons—getting shunned by so many people meant that he would have a lot of uninterrupted time to work on Tyrant.
Those criticisms aside, Steve is the only person I know who is still able to understand what the debate is composed of. Witness his lengthy response to your "So, you think that the Bill is still relevant today?" question. He goes through chapter and verse to explain why the Bill is still relevant, citing all of the examples that no one else wants to talk about, citing the contractual abuses that take place under the "no harm in trying" basis that the publishers bring to it. If the kid’s stupid enough to sign a blanket agreement agreeing that even if we don’t buy his proposal we can use what he has in there by claiming that we were already discussing something like that. This is what happens when the debate lapses and everyone just agrees that things are a lot better now. Unless you’re vocal about these sorts of encroachments on basic ethical business behaviour, they’re just going to get worse and worse. There’s nothing magical about the guys who chose to discuss all this back in 1988, it was more a matter of "SOMEONE has to start discussing this stuff" just as Neal Adams seemed to have the same sense back in the 70s. At a certain point if you’re the only one talking about it everyone just screens you out, which is why it’s important that new voices chime in wherever they see a need. And which is why I’ve spent this much time on it with you, Al. You’re the only person in seventeen years to express an interest. It’s probably your turn now. Don’t be surprised if it loses you every friend you have. It still needs to be done.
Gary and Kim Thompson…they are publishers first and foremost. They are passionate advocates for the cartoonists they publish.
Yes, and they’re always on the hunt for more cartoonists to publish and they have been known to get way behind on their payments and they have been known to pay miniscule page rates for stuff like their Eros line. The Comics Journal doesn’t discuss creator’s rights very extensively for the exact reason that Fantagraphics is very vulnerable on that score. It’s a top-heavy salaried outfit. Look at the number of names on the masthead and compare that with Top Shelf which has exactly three full-time people or Drawn & Quarterly that has two full-time people. All of them have severe cash-flow woes so the last thing they want is to have the perception noised abroad that you’re more likely to turn a profit on your book and actually get paid if you’re the only one you have to worry about—that is, self-publishing. Again, these things are discussed publicly only indirectly as when Fantagraphics mounts an appeal to help them stave off bankruptcy and you find out that the creators are getting paid very late.
Steve’s also bang on the money in this section in describing all of the fairy tales that the publishers use to justify their entirely legal contractual piracy. ‘It was self-evident to many of us that we did NOT know our implicit rights as creators, and the need for such a document was urgent." This was one of the reasons that I was willing to widen the debate. I could see that these guys desperately wanted something that would tell them that there was another side to the story that the publishers were telling. However, it also became obvious very quickly that the need to see Marvel and DC as shining cities on the hill among the retailers, fans, readers and wannabe creators made it a largely futile effort. They just don’t want to believe that working for Marvel or DC is anything but a 24-hour a day trip to the circus. It’s a circus all right but not in the way they think of it. As I was fond of saying at the time, "There is no cure for wilful stupidity." From then on, I was happy to discuss these things, but I did come to realized that it is likely discussing heroin with a junkie. The overwhelming need for the heroin means that you can’t communicate with them on the subject in any really meaningful way. For most freelance comic book artists Batman and Spider-man and the mainstream super-heroes are the heroin that blind them to the way that they’re being treated by the companies. That hasn’t changed much that I can see in the last thirty years.
When the direct sales market collapsed, it was no long feasible for me to self-publish.
No, when Steve Bissette refused to produce any more than two pages in six months of Tyrant it was no longer feasible for him to self-publish. The direct market didn’t collapse, Steve did.
And at that point in the industry collapse, Tyrant was no longer a means of feeding or sheltering my family, nor was working in comics at all when it took nine months to be paid for work completed (again, by one of the celebrated ‘creator friendly’ publishers)
This is too clever by half. Steve was always paid within thirty days for the Tyrant issues that he shipped. When he puts his mind to it he is as fast and brilliant an artist as there is working in the medium so he could easily have done Tyrant at least bi-monthly and the book was selling as many back issues as it was of its current issue. It was only when he stopped producing issues and went elsewhere to do freelance work that he was not getting paid for nine months. His conscious decision not to stay on schedule with Tyrant was what dug the hole for him. All he had to do was to say to Nancy/Marlene: "I can cover your expenses and the kids, too, but I’m going to have to work twelve hours a day seven days a week on Tyrant to do it. It’ll be tough for a few months, but the money will be there. But, if you don’t leave me alone to write and draw Tyrant, the money definitely won’t be there. Tyrant is the kids’, yours and my best shot."
One of the primary lessons I learned from Dave was self-publishing is a lonely path.
Self-publishing is an "alone path". "Alone" is a statement of fact. "Lonely" is a self-pitying way of viewing that fact.
I mean the whole studio system is fraught with peril by its very nature. Unless you absolutely define the legal territory, it can be disastrous.
As I say, I don’t think Steve understood the idea of "demarcation" through the Summit processes, but once he had experienced it with Taboo—‘Where do my rights and obligations stop and yours begin?"—he never lost sight of it. He and I are in complete agreement. What is needed is clearly defined boundaries which guarantee the optimal number of rights being preserved for all parties concerned.
The Image experiment—what does ‘publishing’ mean with this coalition? What does ‘a studio’ mean? ‘Who owns all that Rob Liefeld work if Rob is not the one writing and drawing all of it?’ All of these core issues that were relevant to the Creators Bill of Rights were being glossed over.
Exactly. Glossing things over is the exact opposite of clarifying where the lines of demarcation are.
I feel we have a generational obligation to improve conditions for those who follow—that was no longer the case.
I beg to differ. If you can’t get anyone to agree with you or even discuss these issues with you, then you need to lead by example. Get Tyrant out on time and show the next generation that it is possible to produce your own work and control it and derive the benefit from it and to ignore DC or Marvel when they come calling. However much they’re paying Steve to work in that video store I can’t imagine that it is a patch on what he would be making right now selling two Tyrant trade paperbacks of 500 pages each which he could easily have accomplished if he had just put his mind to it and stuck to it. Danny and Maia—unless my math is way off: Nancy/Marlene was pregnant with one of the other when I met Steve in England in 1986—are either in their twenties or soon will be. Even if they’re going to college and Steve is paying the whole shot, someday that too will come to an end and Steve will only have himself and his alimony payments to worry about. At that point I hope he’ll choose to do the right thing and finish the great story that he started with Tyrant.
Feel free to e-mail all of this to Scott, Rick and Steve and to publish as much as you want of it and forward any responses to me that you get. And consider posting it to Rick’s Comicon website. Personally, I don’t think it will hurt whatever sales you might get on an "in print" version and these things are way overdue for discussion, as far as I can see. I even asked Erik Larsen when he contacted me last week if he was willing to go "on the record" in discussing the use of work-made-for-hire at Image Comics. No response, yet, but I’ll keep you posted.
POSTSCRIPT 27 April—I just got your letter. That’s the way that cat yronwode spells her name. You can put capitals on it if you want. Here’s the response that I got from Erik Larsen tacked onto the end along with my response to his response. I’ll try to keep you updated on this which seems particularly useful since he’s in a position to actually facilitate changes.
Erik Larsen and Dave Sim debate a creator’s right(?)
Larsen: I’m absolutely willing to talk on the record about work-made-for hire or whatever it is. The stuff can get pretty sticky. In your example, of yourself doing a crossover, it’s potentially pretty simple but in a great many comics there are large teams of people involved in lettering, coloring, inking, editing, penciling, writing. It would be a nightmare if everybody could reprint the books they contributed to wherever they wanted to reprint them.
My own personal belief is that everything should be put on the table prior to the creative process beginning. If I’m writing a Cerebus one-shot and I create his evil twin and his long-lost brother—it wouldn’t cross my mind that I ought to have a piece of that. Clearly, those characters could not and would not exist were it not for the existence of Cerebus. When I gave characters to Marvel, it was understood by all parties that I was not going to own these characters and I was fine with that. I knew that that was what I was getting myself into. And sure, there were a few regrets here and there—characters that I’d have liked to hang onto—but tough luck! That was the deal that I agreed to going into it.
The whole Neil Gaiman situation I found to be particularly annoying, mostly because the characters Neil "created" were variations on Spawn himself. A female "angel" instead of a male "devil," medieval versions of existing characters, etc. It bothered me that Todd was stupid enough to let somebody "create" these characters and it bothered me that Neil would insist on owning something that he didn’t legitimately create.
[referring to Spawn 10] Violator in a dress made of dollar bills is still the Violator, after all.
I dunno—I’m rambling.
If I’m working with a letterer, he understands that he’s getting paid to essentially paint my house. He may be proud of his work, he may be well paid for his efforts, but he doesn’t get to own my house no matter how pretty he makes it look.
As far as other people go—Image itself owns nothing. We don’t have any rights to anything. If a creator decides to take their book elsewhere—they can do that. If they want to make a movie—we don’t see squat.
Sim: Yes, and I think that’s admirable and not widely publicized enough—particularly if we were to compare the Image deal to what, as far as any of us knows, a lot of other publishers are offering. That’s been a big part of my argument all along is that all of these agreements are negotiated behind closed doors which tends to benefit the companies with the highest profiles and the least attractive and most acquisitive deals. Steve Bissette mentioned recently that he saw a contract that indemnified the company if they later published something similar to what you pitched to them if it had been "in the works" at that point. Now, how are you going to prove in a court of law that it wasn’t "in the works" and they just stole all or part of your proposal? Along the lines of what happened to Barry Windsor-Smith with his Hulk story that he presented to Marvel that suggested that Bruce Banner had been abused as a child. They pass on the project but do a complete Marvelized version of it and later it becomes part of the Hulk movie. On the one hand, yes, Barry should’ve known better than to just present them with something that they can walk away with—on the other hand I think it needs to be publicized more that these things do happen and to warn people about what can happen.
Working backwards through your points:
I can certainly agree that a house painter shouldn’t own your house but I’m not sure the analogy is perfect. One of the things that I suggested to Al Nickerson is that there needs to be a ‘norm’ in the field that we can base some of these agreements on. Let’s say that you’re a hot young talent and you’ve got a book that you’re getting ready to self-publish or take to Image and you approach Todd Klein to letter your book. You have a particular look to the lettering that you want Todd to design, a way that the lead character talks. Now, in my view, with no one having any idea if the book is going to be a hit or not, there should be some level of negotiation because it’s Todd Klein. "Sure, I’ll design the lettering for your book but I think the book is going to be a hit and I want a piece of the action if the book becomes a hit or it gets made into a movie and in exchange for that piece of the action, I’m willing to give you a break on my regular rate." OR "I think the book is going to be a hit, but given that you want to keep the whole thing for yourself and not cut me in on it, I’m going to charge you twice what my usual rate is." That is, there should be one price you’re paid on a book if it’s straight work-made-for-hire and it should be higher—much higher—than what you’re paid if you get a participation deal. If you look at Hollywood they have all of these things sorted out through the various creator’s guilds and what-not. These are the terms that need to be fulfilled to get a screen credit, this is how much you get for the treatment, this is how much for a finished script, this is how much if the movie is made. And, yes, I do think a letterer should have the right to reproduce his own work. Todd Klein should have the right to reproduce his lettering in a Todd Klein Guide to Lettering. If it says that on the cover, I think only a Complete Jurisprudential Paranoiac (i.e. DC and Marvel’s legal departments) would say that reproducing fifty or a hundred Sandman pages where the point of their inclusion was the lettering would in any way jeopardize or dilute the Sandman trademark. I wouldn’t ask for a legal opinion because the legal opinion is always going to favour ‘cease and desist’ letters and threats—that’s where the money is. I would agree with you that Todd should not be able to do his own printing of Season of Mists because that encroaches on marketability of the individual Sandman packages. Lettering and coloring and—to an extent—inking are "service" contributions, "second tier" stuff. But I always held and always have held that Gerhard has the right to do his own trade paperbacks from Church and State on. There is no way that you can—with a straight face—call what he did for twenty years on Cerebus a "service" contribution or "second tier" stuff. Legally? Sure. Ethically? No way.
Like the Frazetta pages of Little Annie Fanny. Are you going to tell me that Frazetta was Kurtzman’s house painter? Legally? Sure. He got paid what he got paid just like a house painter. He knew the deal going in. Do you think Kurtzman’s estate should be able to sell the Frazetta originals and keep all the proceeds when those originals would probably go for $35,000 instead of $5,000? Legally? Sure. Ethically? No way.
Violator in a dress made up of dollar bills is still the Violator—but not exactly. There is no question who came up with that idea, that visual concept. I was making use of Todd’s trademarked character the same way that Todd made use of parts of other trademarked characters when he drew all the arms sticking out through the bars with very specific features—on my instructions—that in this field are as identifiable as the Ford logo or the Coca-Cola sign. Todd didn’t own those features, but he made use of them. I didn’t own the Violator, but I made use of him. Spawn 10 was my intentional textbook on the borderlines of trademark infringement indicating just how foolish the whole idea of trademark is.
The Neil Gaiman situation isn’t as cut-and-dried as you’re making it out to be. Neil knew what he was getting into at DC. Sandman is their character and Neil, as a novice scripter, decided he was going to do some interesting things with it and see what happened. Well, what happened turned out to be huge and, from what I understand, DC did the noblesse oblige "right thing" and magnanimously granted Neil greater—and entirely unprecedented—participation in Sandman and other ‘considerations’ in acknowledgement of what had happened. Whatever he got—and, again, none of us knows because it all took place behind closed doors—all he could do was to count himself lucky because he didn’t have a legal leg to stand on and, presumably, he knew it.
That wasn’t the case with Spawn 9. That was Neil responding to what he saw as a gang of young hot-shots turning things upside down and showing everyone how it’s done: a new way of doing comics and a new way of doing business. I’ll grant you that Medieval Spawn was a stretch—as soon ask DC to keep legal track of the whereabouts of everyone who ever wrote a Zebra Batman or Jimmy Olsen Turtleman story so they can be cut a cheque every time that image appears—but Angela? No, Angela was a pretty distinctive character. I didn’t even pay much attention to the book, but when you say "Neil Gaiman’s Angela" I get a definite picture in my mind. And that sort of mental connection is a lot of what the comic-book field runs on. Neil guessed wrong about how Todd intended to conduct his business and was, as a result, disappointed. He thought he was participating in something new where participation in the fruits of a creative work was going to be a given and it turned out that he was back at DC in 1938 having signed away all his rights to a character he thought he owned.
Now there are fuzzy areas, I’ll grant you. Not as fuzzy to me as they are to Neil. I said to him on the phone once, "C’mon, Neil. We got paid $100,000 to write a single issue of a funnybook. Most novelists don’t get an advance that high for their first five novels." And he pointed out that if you were going on per copy sales, we were getting less than most of the royalty deals of the time. It was a high dollar amount but as a percentage of revenues it was worse by far than what DC and Marvel were paying in royalties on their top-selling titles. And that gets into the meat of the dispute which, as I understand it, was that Todd had promised to match whatever royalty Neil was getting on Sandman and Neil never got around to sending him a copy of his contract to prove what his royalty on Sandman was. Which also takes us back to the core of the problem, as I see it, that all these things take place behind closed doors. Unless Neil is willing to tell everybody what his royalty was on an issue of Sandman, there’s no way to tell if he’s owed more money for Spawn 9. Which in turn doesn’t affect my personal view that if you’re paid $100,000 for a funnybook, script the guy who paid you that amount of money has bought all rights. Case closed. For me, that aligns with my view that if you want to own all the rights to something you should have to pay a premium price for it. In my opinion $100,000 for a funnybook script is a premium price. In spades.
My own personal belief is that there should be an established spectrum of what each discipline is worth and that it should be taken as a given that if you work on a page of artwork or a story, you have the basic right to reproduce it without asking the permission of anyone else who worked on that page or story. To me, that’s what everyone should understand going in: if you don’t want someone else reproducing your work without your permission then make sure you do everything yourself—write it, pencil it, ink it, letter it and color it and don’t allow anyone else to touch your precious pages. If you hire someone else to write it, pencil it, ink it, letter it or colour it or work on any page where something has been contributed to it before you got it or will be contributed to it after you’ve done your part then be prepared to share equally in the rights to that page with all of the participants. Or be prepared to pay a premium price to make sure you own the whole shootin’ match and the other participants don’t have a leg to stand on.
Just as you say, "everything should be on the table prior to the creative process beginning" and that that should be emphasized to young creators who work on jam pages at conventions or pass around drawings and modify them and work up story ideas. Every time you do that, you’re creating an intellectual property which has inherent attributes in the marketplace. Teenage Mutant Ninja Turtles were come up with one adjective at a time with Kevin and Peter just goofing around and jamming on some drawings. It’s just as likely in this day and age of SPX and Ape that the next time it happens it could be six guys who came up with whatever-it-is in a hotel room scarfing pizza and drinking beer. And they’ll have to hash out who came up with what and who owns what because they didn’t decide it ahead of time.
But, if you’re talking about "first tier" concerns: story/script, layouts/pencils then I think each person should have the right to reproduce their own work without asking permission. If your work is on the page, you have the right to reprint it. It’s just common sense that when I publish the Cerebus/Spirit jam I’m not in any way suggesting that I own the intellectual property rights to the Spirit in whole or in part. Any more than Todd would be suggesting he owns the intellectual property rights to Cerebus in whole or in part if he reprints Spawn 10 some day.
It does get "sticky" as you say. But I don’t think it would take a roomful of rocket scientists to make it "less sticky".
Sorry to use up all this fax paper. Back to you.
Next: A Letter from Rick Veitch Rick's letter responding to the previous chats and interviews concerning The Creator's Bill of Rights.