My Tripod Page
The Creator's Bill of Rights:
A Letter, or two, from Dave Sim

Below are two more of Dave Sim’s letters to me. Here, Dave shares some of his views on the recent online talks concerning The Creator’s Bill of Rights . -Al Nickerson

12 May 05

Dear Al:

Responding to the new input, to


Yes, I do think that I have the right to reprint pages that I worked on, including Spawn 10 and Turtles 8. I think that is a right that needs to be negotiated away specifically although the law holds the opposing view that if you have been paid for your work the work is owned by the person who paid you unless otherwise specified. That is, you have to specifically "opt out" of work-made-for-hire in order not to have it be in effect and I think that’s something that a creator needs to be aware of when negotiating with a company. The recent article in Wizard on Steve Gerber (#164 "Duck & Cover" by Christopher Lawrence) raises the interesting point that Gerber used to cross out those notorious blanket endorsement stamps on the back of his checks before cashing them. I suspect that gave the Marvel legal department conniptions when they found out and probably led to the out-of-court settlement of the Howard the Duck dispute that Steve deemed to be fair (although he isn’t permitted to discuss the details). He had obviously expressed his intention by crossing out the endorsement stamp to "opt out" of work-made-for-hire and it was up to Marvel to guarantee that he didn’t do so. The Bookkeeping Dept. should have notified the Legal Dept. when the checks came back with the stamps crossed out. Because they didn’t do so, Steve had them over a legal barrel. The paperwork supported his contention that he didn’t work under the terms of work-made-for-hire.

I do think that whatever amount you get paid you can decide for yourself whether that supersedes the fundamental right. In my case if someone pays me $100K for a comic-book script, as Todd did, I consider it to be theirs (just in case anyone out there wants to make me the same offer), movie rights, TV rights, merchandising rights. Of course I was pretty careful not to put anything in my that could be used in that way and, obviously, Cerebus was "off the table" when it came to claiming ancillary rights. In my view, Neil Gaiman was fairly compensated for Spawn 9 if he got a check the size of mine. Whatever money Todd made off of the Angela character as an action figure and in appearances in his books (was she in any of the animated cartoons? I know she wasn’t in the movie), I assume that $100K would cover it. But, of course, that isn’t my call to make. If Neil felt ripped off or thought he was ripped off and he was willing to go to court to get satisfaction then that’s the way that is going to go. Neil Gaiman makes a great deal more money than I do, so $100K isn’t the astronomical sum to him that it is to me. Particularly in 1993 when he was—let’s face it—a very bankable writing name in a variety of fields all of which tend to pay people checks with lots of zeroes on them.

In answer to Neal Adams’ belief about lettering not being a discipline that he could defend as creative—and I can certainly agree in the case of, say, the newspaper strip lettering that Ben Oda used to do for half of the cartoonists in Connecticut—I don’t think there’s any cut-and-dried approach to valuing, say, lettering that can be applied across-the-board successfully. At the moment, I’m the current Best Letterer in the field according to the Harvey Awards voters (and thanks to everyone who voted for me). Presumably if a publisher comes to me and wants me to letter their book, I’m going to be able to command a higher price than someone who has only been in the field three weeks. Particularly since lettering is the only thing that I’m considered that good at and the only thing I get nominated for in the Harveys and the Eisners (at least since 186 came out). I assume that Todd Klein—who is the undisputed Champion of Lettering in our modern age—gets paid a premium rate for what he does and deservedly so if for no other reason than his design of the individual lettering styles for the Endless in Sandman. If you just want the sort of lettering Ben Oda did on the various newspaper strips, then that’s one thing. If you want someone to create a visual style for the lettering on your strip like Todd Klein or Dave Sim or as Walt Kelly used to do on Pogo then I think the degree of difficulty and required expertise needs to be taken into account. But, I will acknowledge that basic lettering—particularly now that it can be programmed into a computer—is probably not a discipline that needs to be treated as particularly complicated or noteworthy in terms of fair compensation. I do think it would be a nice gesture if the letterer on a book like, say, Men in Black would continue to get even a meagre percentage of movie revenues just because he or she had been there at "ground zero" before the book became a movie franchise. Even just a thousand or two thousand dollars out of the movie advance just as a way of saying to the letterers out there, "See? If you happen to letter a book that gets made into a movie franchise it’ll pay for a nice vacation for you." And, again, that can be negotiated away. If the company just isn’t offering any form of royalty to any letterer and the letterer needs the work, well, they can happily reach that agreement. But I do think it should be specified, that participation is an ethical right even if it isn’t a legal right and that right should be signed away specifically.

Djcoffman :

I think you covered most of the points that I would make here, Al.

I suppose the only thing I would add is my "big picture" view that the Bill of Rights should ultimately be expanded to include all of the rights that are inherent in an intellectual property and a page of art at the moment of its creation—that is, the letterer has a small share of the rights inherent in that story and in that page unless otherwise specified. If we can ultimately come up with a blanket agreement that covers everything then any two guys jamming on a strip can just say, Yes we agree with the Bill of Rights blanket document or they can say the Bill of Rights blanket document doesn’t apply.

As in the case of you potentially doing a jam strip with Joe Staton and Nick Cuti and, as you say, they’re worried about dilution of their own rights to E-man. You would just declare that the Bill of Rights blanket document isn’t in effect. Your compensation is working on the strip and any compensation beyond that is entirely up to Joe Staton and Nick Cuti. I didn’t negotiate agreements with Kevin and Peter or Todd. Whatever they wanted to pay me, that was up to them and I would just follow their lead. Kevin wanted the story to go out of print because it was becoming a headache. That was fine by me. The only way to get the story now is on eBay or in a comic shop. There’s something like 65,000 of the issue 8 out there and God-only-knows how many copies of the First Comics volume three trade. I’m not worried that it is going to disappear off the face of the earth. If Peter ever wants to reprint it, that’s up to him. Again, I would follow his lead. Todd has never reprinted Spawn 10. Again, that’s up to him and in that case there are something like 900,000 of them out there. A big part of me would like to redo the story with Gerhard backgrounds and with me redrawing Cerebus but it’s not as if the subject consumes me and robs me of my sleep or that I would consider Todd an enemy of creator’s rights if it never happened. It certainly is the most ill-fitting part of the Spawn storyline—it was written that way—so it makes sense for Todd to pretend that it never happened. I’ve got my own company and what we do here is keep the sixteen trade paperbacks in print so Turtles 8 and Spawn 10 are never on the ‘front burner’ except insofar as they helped to introduce two different generations of comic-book readers to Cerebus. That was the most important part of both deals. But I wouldn’t recommend to a novice creator being as philosophical as I am about the net results of doing a crossover for that reason: I have an established company so I can view my stake in those two stories from an angle that doesn’t exist for a newcomer who would have to be considered unwise to just sign off on everything and hope for the best when he’s trying to make his rent and has no idea where or when he might produce his Sudden Hit that he never equals again for the rest of his life or, in fact, where his next meal is coming from. My Sudden Hit happened with Cerebus and I always made sure that it was under my sole jurisdiction—and then under Ger’s and my joint jurisdiction as Ger’s participation in the book became greater and greater (which is a core point with me: it’s legal to treat Ger as work-made-for-hire, but twenty years into the collaboration it would have certainly been unethical)—so I could afford to be philosophical about participation in other collaborations (like the forthcoming "Showgirls are Forever" in Gun Fu with Howard M. Shum whose script we jammed on from an original idea of my own—if it gets made into Gun Fu The Movie I can afford to be philosophical and just let Howard compensate me as he sees fit without worrying that I’m going to be standing outside the barricades at the premiere dressed in a moth-eaten raincoat and wondering where I’m going to get enough money to buy a can of beans that night).

Tom Spurgeon:

Ever the natural contrarian (a job skill presumably mandated for employment at the Comics Journal) Mr. Spurgeon (Hiya, Tom) advocates the revival of the original Manifesto. Since Al Nickerson’s contact came at the point where I was doing a preliminary breakdown of the Cerebus Archive material, he might actually get his wish since I kept all of my original handwritten notes from the preliminary meetings in Northampton and with Frank Miller and Alan Moore, the Toronto Summit as well as those of the other participants (the Waterview Suite had a lovely long conference table and at each place was a pad of paper and a pen supplied by L’Hotel—so in addition to notes on the Manifesto discussion in progress) (all of us being artists) (there were a lot of fine doodles as well) and made a point of separating out everything that applied to the sequence of events, including all correspondence on the Diamond vs. The Puma Blues dispute that was the point of origin. I want to get the entire Archive in chronological order first but then I plan on going through the Summit Files one page at a time and trying to reconstruct the Manifesto at the point where it was abandoned in favour of the Bill of Rights. The pile of paper at this point stands about an inch thick.

In retrospect (contrarian to contrarian) I suspect Mr. Spurgeon might be right. I abandoned the Manifesto because the Bill of Rights allowed for a tactical shortcut to my original goal, endorsement of the view that I had the right to choose how to distribute my own work. I think the Manifesto would ultimately have led in the direction suggested above: a blanket statement of what inherent rights exist when an intellectual property is created and that each of those inherent rights—both individually and collectively—should be considered by the intellectual property’s creator(s) before signing any legal agreement.

Colleen Doran did a publication a few years after called What Your Publisher Won’t Tell You (or a title like that, anyway) which, as I recall, was pointing in the same direction in a lot of the points that she covered. It also contained what I would call "material of recourse"—legal remedies and legal assistance available to artists and writers, but a good chunk of it dealt more directly with the inherent legal ramifications implied by the creation of an intellectual property and how to protect that property. Maybe she’d be willing to post the relevant material as part of the discussion.

The Pulse Interview:

I would have answered "Why was this done?" a little differently, so let me lapse into italics and the third person:

I’m not sure "travesties" sums up the original motivation, which was more a conflict of viewpoints that had arisen because Dave Sim had chosen to sell his High Society trade paperback directly to his readers, having gotten insufficient orders from the retailers to pay the printing bill. As a reaction, Diamond Comic Distributors suggested that they might choose not to distribute The Puma Blues which Sim was also publishing at the time—a tit for tat "If you won’t sell us High Society we might choose not to distribute The Puma Blues: if you can pick and choose what you’ll offer us, we can pick and choose what we’ll accept from you." There seemed to be a persuasive argument on both sides and Sim basically sought the opinions of Kevin Eastman and Pete Laird as well as Steve Bissette and John Totelben (who were planning the Taboo anthology which Sim was also about to publish), Michael Zulli and Stephen Murphy (the artist and writer of Puma Blues whose livelihood was potentially being threatened and were therefore considered by Sim to be central and principle figures in any discussion of "where do we go from here?"). The question was basically "Where do a self-publisher’s ‘rights to choose how to run his own business’ end and a distributors’ start?" At the time of the Toronto Summit and the preliminary meetings in Northampton and with Alan Moore and Frank Miller, it seemed the best way to determine jurisdiction was to follow the progress of a creative work from its creation to the point where it is purchased by the consumer and consider where and when control over the creation changes hands—IF it changes hands—and to draw the lines as sharply as possible as general rules of conduct and then present them to Diamond Comic Distributors as a proposal from our side of the fence to their side of the fence and to solicit feedback from them so we could arrive at some conclusions that would prevent a situation like this from coming up again in the future.

This almost might be a good place to assert—along your "starry-eyed creators who will sign anything to get work" assertion—that I was very much in that boat myself. It took me a long time to get a story accepted at Skywald and a story accepted at Warren. The last thing I was going to do was to quibble with the rubber stamp on the back of the check signing away all my rights to those stories, even though I was completely aware of what it was that I was potentially doing. I avoided creating any series and pitching those to the companies, but I was aware that you can accidentally have a Sudden Hit in a short story or a single panel (Howard the Duck and Popeye come to mind) and it’s too late to turn back once you cash the check.

I’m really glad that this is actually generating some sober discussion seventeen years after the fact and I hope you’ll keep me posted about what’s, er, posted.


18 May 05

Hi, Al:

Yeah, I really hope you will put your thoughts down on paper—you and any number of other guys who are just getting rolling. I mean, on the one hand it’s nice to see the guys of my generation stepping back up to the plate but I really hope that that isn’t seen as a ‘you have to be a senior citizen to have a dog in this fight.’ Quite the contrary—the guys who are first experiencing living from paycheque-to-paycheque are always the ones with the most to lose. Us senior citizens (relatively speaking) usually have a nest-egg of some kind and at least a few sources of revenue up our sleeves so it’s very easy to get persuaded that there’s no real problem involved to listen to (some of) us. It’s always up to the young guys to keep up the pressure and the biggest pressure is always created outside of the traditional system. It was Dean Mullaney at Eclipse pioneering royalties and the success of various self-publishers (Richard and Wendy Pini and Kevin and Peter far more than myself) that compelled the big companies to offer better compensation. They didn’t do it because they suddenly felt all soft and squishy about creators. And no need to apologize for any delay in getting back to me—paying work should always come before philosophical discussions and I’m glad to hear that Archie Pubs. is keeping you busy. But anywhere you find room to "chew the fat", hey, every voice is going to be making a contribution.

I hadn’t read Will’s quote in the Eisner/Miller book, but I can’t say that it surprises me. As Frank says in the interview I did with him for Following Cerebus #5’s cover feature, "Advise & Consent: Editing Our Graphic Novels" a lot of Will’s viewpoints were shaped by his Depression-era background. No question about it "In the marketplace, moral rights are often disregarded." The problem that I had with this at the time and which I continue to have with this is that I don’t think the flat statement can or should mitigate further discussion, which seems to be the consensus in the comic-book field which, itself, often seems to be stuck in Depression-era thinking that amounts to "Don’t rock the boat" and "You can’t fight City Hall."

Nor do I think that moral rights should be imposed, (which seems to be the inference people have always drawn from my raising these issues). Nor do I think Scott ever intended that inference when he came up with the Bill and I certainly don’t remember any of us who participated in Northampton holding that view. In fact, at the end of the Northampton Summit, Scott suggested that we all sign the document and a consensus emerged pretty quickly that it was too early to do that. What we all—and Scott ultimately agreed, as I recall—thought was that we had come up with a good preliminary document for further discussion. If it withstood rigorous debate and give-and-take and input from various quarters, then we could all sign the result—as could anyone else who saw merit in it. Only, of course, there was no debate, no give-and-take, no input until you wrote to me a little while ago wondering what had happened with the Bill since 1988.
Denis Kitchen:

Denis Kitchen and I got about as well-acquainted as we were going to get when I was dating Susan Alston of the Comic Book Legal Defence Fund and therefore spending a fair amount of time in Northampton between 1994 and 1998—as the head of the CBLDF he was Susan’s boss. We do have our differences. I remember him ironically signing a piece of artwork to me, "Denis Kitchen, self-publisher gone bad". Which was more than a little excessive if that was how he thought that I saw him. As he notes in his reply to you, when he started Kitchen Sink he was certainly in full-bore hippie mode and, as he says, gave away all of his money even to the extent of not taking a salary. Deni and I did pretty much the same thing with the first go-round of publishing other books through Aardvark-Vanaheim and Steve Bissette had the same experience with Taboo. Until you actually get some basic bookkeeping experience under your belt and can read a spread sheet and crunch some basic numbers and start taking a hard look at how much money you’re making for the hours of work you’re putting in, you don’t realize how much of a share of each comic book’s cover price you need to hang onto just to have an outside chance of running a viable publishing company. It isn’t just profit and loss, which is what everyone looks at in the beginning—subtract the printing bill and material costs from what the distributors pay you and that’s how much the book makes (as if you can just make out a deposit slip in that amount and take it to the bank)—it’s also a matter of cash flow. How often does the money come in and what are your fixed expenses for those periods? You always have to pay rent, you always have to pay a phone bill, postage costs, heating, electricity every month and if the comic book is only coming out every other month or every third month or once a year then the amount you need to make from it gets multiplied by the number of months you have to keep the doors open when revenues aren’t coming in. But this is very difficult to explain to anyone who hasn’t had the experience. The Denis Kitchen who founded Kitchen Sink would—unjustifiably—consider the Denis Kitchen who finally instituted real world realities to be a capitalist pig. In fact a great deal of Denis’ cartooning involves the conflict between his inner hippie and his capitalist self and is really, really good in my view. Cartooning’s loss was publishing’s gain when Denis made the difficult choice of the latter over the former at Harvey Kurtzman’s behest ("We have all kinds of good cartoonists, what we need are more good publishers."). And I think that it’s unfortunate that the comic-book field tends to have the same "inner hippie" conflict. It tends to cause problems for those who figure out that even a really basic field like the Direct Market (where non-returnability does simplify the business process dramatically) can only be simplified so far and then there are still bottom-line real-world realities like cash flow and amortization and write-offs of bad debts and warehousing costs that can only be ignored if you’re willing to go out of business because you just refuse to accept that they are inescapable realities. The biggest problem is that the hard knowledge of business realities rubs the "inner hippie" the wrong way and speaking knowledgably about business matters in an environment dominated by a "hippie sensibility" (as most of the comic book field is) just causes people to ignore you and screen out whatever you have to say. To the ‘hippie sensibility" if you understand business, you’re anti-art and a capitalist pig and probably a Republican. Since the mid-80s I’ve been in the unenviable situation of having to insist that I think aspects of the business need to be discussed no matter how many people want to screen me out. I was hardly a "pie in the sky" participant at the Northampton Summit. I had already been through the mill and had already decided that there was a fair amount of ignorance (both my own and others’) in the field that needed to be addressed. At the time of the Northampton Summit, Kevin and Peter were still pretty new to the experience of publishing other people (and had the first batches of Hollywood and merchandising money to more than smooth over the cash flow rough spots everyone else was experiencing) and Steve Bissette was still basically a freelancer thinking of self-publishing "someday up ahead" and was just beginning to package Taboo for my own Aardvark One International. So I was certainly the most pragmatic of the participants if you’re talking about "losing the rose-coloured glasses" (with Richard Pini in a comparable situation).

The problem that I see with Denis and Will’s position is that it tends to amount to "look out for yourself and let everyone else fend for themselves" which I can understand with my own first-hand experience of how people with business knowledge are looked down upon by the creative community. I don’t even disagree with the expressed sentiment entirely. Obviously Gerhard and I look after ourselves: that’s why Aardvark-Vanaheim is still here and still providing us a good livelihood. But I do think it is worth raising core issues—particularly core issues in overlapping jurisdictions—in the comic-book field for discussion.

A good example is Don Simpson’s dust-up with Denis which took place just after Don had been a solid participant in the Spirits of Independence stops and had given self-publishing his best shot with Bizarre Heroes and just before the time period that I was spending time in Northampton. Don circulated to a select group of folks a series of [increasingly vituperative on both sides] exchanges between himself and Denis over the issue of the Megaton Man negatives. Don had done a number of issues of Megaton Man through Kitchen Sink under a contract for a given number of years, at which time Don decided not to renew and Denis was fine with that. The problem came up when Don wanted the Megaton Man negatives from Denis because Don was now a self-publisher and having all the negs would mean that his printing costs would be substantially lower on a small print run. Don’s point was that the Megaton Man negatives were useless to Denis because he didn’t have the rights to print the book anymore. At a social occasion at Susan’s place, I asked Denis about the dispute (without indicating that I had read the entire correspondence—I didn’t know what Denis’ reaction would have been) and he said that he had asked Will about it and Will’s position was that Denis owned the negatives. Denis paid for them, Denis owned them and was under no obligation to give them back. Well, I could understand that and there’s no question that it was always difficult for me—or anyone—to say, "Will, I think you’re wrong." Will’s monumental stature in the field meant that you were never just getting a considered business judgement on a given issue from Joe Businessguy in the street. Because of the unique relationship between Denis and Will as publisher and creator, it was as if Denis was the President of the United States and anytime he had a tough issue on his hands, he could just walk over to the Lincoln Memorial and ask Honest Abe to call it and Honest Abe would call it for him and he could tell anyone who questioned his position "Abraham Lincoln says I’m right."

Technically and (perhaps more relevant) legally—from what I understand—negatives actually belong to the printer unless otherwise specified. They can recycle the material and make a certain amount of money doing so and most people really aren’t interested in their negatives. As an example, a nuts-and-bolts place doing their 2005 catalogue have no interest in retaining their negatives unless they just redo the catalogue changing the prices every year. Most comic-book publishers, by contrast, specify that they want the negatives, so essentially those costs get tacked onto each printing bill. If the printer can’t recycle the material, you have to compensate the printer for his lost revenue. For much of the history of the comic-book field, there was only a marginal belief that it was worth hanging onto the negatives. Most places—if they did anything—did really bad Photostats (which were cheaper than hanging onto the negatives) which is why much of the Golden Age and early Marvel material is reproduced so badly whenever it’s reprinted. Had they hung onto the negatives, it would look like the original artwork instead of like a muddy approximation of the printed copies). Every time Kitchen Sink paid the printer who was printing Megaton Man, the price would be x number of dollars higher because they were keeping the negatives. So, yes, clearly Kitchen Sink had all right and title to those physical negatives.

Now, the problem really develops because of self-publishing. Until self-publishing became viable, there was really no reason for any cartoonist to give two thoughts to what happened with the negatives to his work. He got paid to write and draw something that was essentially considered a piece of garbage, so much a piece of garbage that it was inconceivable that you would ever want to print it more than once even when you owned it lock, stock and barrel. And the only people who owned comic-book material were the publishers. The idea that a cartoonist could also be a publisher would have been considered ludicrous because of the economies of scale. You had to print a half million copies of something and get it distributed on the newsstands in order to sell a quarter of a million of them and you had to do it month in and month out for years on end with enough good-selling titles to hold down your corner of the newsstand. But, now, the economies of scale have moved in the other direction. Because books are non-returnable in the direct market, you only have to print what you can sell. We printed 2,000 Cerebus No.1’s because we had orders for 2,000. 2,000 No.1s cost us about $500 to print and we sold them for roughly $800. Of the $500 printing bill, probably $100 was for getting the negatives shot. If you’re a freelancer, as Don Simpson was, and you add up all the negatives produced from your artwork over a five-year contract, it can add up to several thousand dollars which is several thousand dollars you won’t have to spend if you have the negatives to make plates from, wherever you take your book to be printed when and if you choose to self-publish it or go to another publisher.

My concern in bringing the anecdote up isn’t to raise the question "Is Denis Kitchen an ethical businessman?" nor is it to inquire "Was Don Simpson an unethical businessman?" My concern is to point out that this is an issue that cartoonists should be thinking about when they sign a contract. And in my experience if you try to talk about it as "Cartoonist A and Publisher B", people just lose interest or say that it doesn’t happen often enough to be concerned about. Whereas if you cite a specific example, then people accuse you of bad-mouthing Denis Kitchen (or whomever you cite as an example).

Digression: The same thing happened with Bissette when he discussed Alan Moore’s on-the-surface-of-it magnanimous offer to let Steve "decide what’s best" on the various offers centering on the publishing and movie rights to From Hell. Steve just wanted the First North American rights for Taboo—he had his own properties to take care of. He didn’t want to be the babysitter for Alan and Eddie’s intellectual property or anyone else’s. It was a clear case of overlapping jurisdiction as to who was responsible for what but Alan got seriously wounded feelings out of it and broke off their friendship because Steve discussed it in the Comics Journal. I still think Steve was right to do so. If he had said "Writer A sells First North American Rights to Publisher B…" everyone would have said it was a vague idea and probably didn’t happen very often. By citing From Hell, to me, Steve was discussing a core issue of creator responsibility and the problems of over-lapping jurisdictions and citing an example that everyone was familiar with as an intellectual property and discussing (or trying to discuss) implications of Alan’s expectation that Steve would take care of From Hell on Alan and Eddie’s behalf and Steve’s expectation that Alan and Eddie would supply him with each instalment to print once in Taboo and then do whatever they chose to do with their own property. It seems to me that the anecdote points up that these issues aren’t just about creator rights. There’re also creator obligations, in my view and in Steve’s view, and one of them is being a good custodian of your intellectual property. If you want it to languish on the shelf or you want to let it go out of print or you want to sell it outright to Jim Lee and then have Jim Lee sell it outright to DC, you have no cause for complaint when you find yourself in a situation which you didn’t intend having vowed to never again work for DC. If you can’t discuss these core issues because you consider them private and you get wounded feelings when they’re discussed, then I think you do a disservice to the creators who are going to follow in your footsteps and you owe an obligation to your own medium and your own field to admit, "If you just philosophically decide not to care who owns your intellectual property—as happened with me when I decided philosophically not to care about who owned my intellectual property and sold it outright to Jim Lee—you can end up contractually in bed with someone you find utterly abhorrent."

Back to Denis Kitchen vs. Don Simpson. Who owns the negatives? What happens to those negatives if the cartoonist and publisher come to a parting of the ways? I’m not even necessarily saying that there should be a template agreement that covers it, but I am saying that I think it is an issue in a day and age when independent comics have a very small profit margin and the cost of shooting new negatives can mean the difference between a small profit and a small loss on a book. If you choose as a creator to sign a five-year contract with a publisher to publish your book and you get paid and in the meantime you sell some or all of the original artwork and decide not to renew, how are you going to keep your work in print? It is certainly entirely viable to say, I just want to get paid for my comic book, I don’t care who owns the negatives and I don’t care if it goes out of print permanently after five years. I think it’s a singularly short-sighted choice, but it is a choice. But I do think that the potential consequences should be openly discussed along with specific examples where works—like, as an example, The Puma Blues which went from Aardvark One International to Mirage and ultimately no one at Mirage specified that the negatives were to be preserved so Preney recycled them at some point after the two trade paperbacks had gone out of print. Puma Blues artist Michael Zulli hates his old work and is perfectly happy that it will never see the light of day again. Again, that’s his choice with Stephen Murphy, the writer. I know a lot of Puma Blues fans who don’t share that viewpoint, but in this particular case it is a given that the Puma Blues comic books that exist and the trade paperbacks that exist are the finite incarnation of that uncompleted story. That’s all there is, there ain’t no more. If, as a cartoonist, that prospect appals you, then you really should check your contract with your publisher and get the issue covered. Either specify that the negatives revert to you in the case of a parting of the ways or you are allowed to buy back the negatives at a fixed price. Presumably the latter creator will get paid more than the former creator because you are potentially causing the publisher an expense somewhere up ahead, so you should forego part of your page rate to even things up.

And I am aware that the printing industry is going "direct to plate" and skipping the negative stage which only makes the issue more pertinent in any number of areas—as an example when it comes to who is going to pay to have all of the negatives of your work converted to the new "direct to plate" format. I also don’t think it’s quite as "just around the corner" as computer people tend to maintain that it is. Again, you are talking about overlapping jurisdictions. Should the creator pay all the expenses for the conversion process? It is, after all his or her work. Should the creator pay half and the publisher pay half? And what about the inevitable upgrades that are built-in with all computer expenses. If your complete works need to be reformatted every two or three years just to keep up with whatever Bill Gates is up to this year, who pays for that? Who gets to choose the format? Who pays when that format gets discontinued and everything has to be converted again in the space of a few weeks?

I don’t think raising these issues in 1988 or now constitutes (as Denis and Will would have it) being "naïve and unrealistic" nor do I think it would in any way "resemble class warfare." As with all of the concerns I wanted to address in the Manifesto and (some of which) got addressed in the Bill of Rights, I was interested in pointing out where these overlapping jurisdictions occur as they come up and alerting creators to the implications of them. Even if I had had carte blanche in these areas prior to the Northampton Summit to carve my own wish list in stone—not having at that time gotten my copy of the Kitchen/Simpson correspondence and not having seen how easily the means of reproducing the Puma Blues could just perish from the face of the earth—I wouldn’t have known to include it. Now that I do know, I think it is worth pointing out and that the disposition of negatives seemed to me a core issue worth discussing at considerable depth (as I’m attempting to do here). I don’t think it would fit the Bill of Rights which is why, thanks to Tom Spurgeon, I’m now thinking in terms of the original Manifesto format more and more, centering on overlapping jurisdictions. To just add to the Bill of Rights: "We have the rights to all negatives used in the reproduction of our artwork" seems needlessly and provocatively absolutist. I mean, I tend to think that way—and have already provided Marshall Rogers and Joe Rubinstein with duplicate negatives for their Swords stories—but I don’t think that can be carved in stone without encroaching on the rights of publishers. If you want your negatives, one way or the other you should specify how you are going to compensate your publisher for providing them to you. In Manifesto Speak:

Negatives which continue to be the principle means of reproducing the Work serve a core function in the Work’s continued existence and dissemination and in order to avoid future conflicts between the Work’s creator and the Work’s publisher, both need to address the spectrum of options available from shared possession and control of the negatives (either equal possession and control or possession and control favouring either the creator or the publisher), reciprocal possession and control (in which the creator and publisher both have a set of negatives and the rights to use them to reproduce the Work) as well as sole possession and control of the negatives (either by the creator or the publisher exclusively) and that a specific mutually agreed-upon position at some point across that spectrum needs to be specifically addressed in any contractual agreement and agreed to by both parties.

Again, I don’t see this as "pie in the sky," this is just outlining the spectrum of options from point A to point B and indicating that it is an issue that should be addressed at contract time to avoid any future conflicts. Had it been on the table when Denis and Don were negotiating the Megaton Man contract it would have avoided a lot of unpleasantness later on.

Likewise, there’s no reason not to introduce the Real World into the equation:

Any agreement not addressing these issues would be deemed to take it as a given that the negatives are the physical property of the publisher (whether or not the publisher has the contractual right to continue to reproduce the Work) and that monetary compensation for the negatives as well as the choice of whether to provide them to the creator or not will be dictated at the publisher’s sole discretion.

If you’re a creator and you can live with that? Hey, I’m not going to lose any sleep over it. But don’t come crying to me when you come to a parting of the ways and you’ve sold a lot of your artwork and you now have no means of reproducing your graphic novel you worked on for four years and your publisher won’t sell you the negatives out of spite.

From what I understand the dispute between Denis and Don was eventually settled. The fact that it was eventually settled is completely and entirely beside the point. The point is that this is an issue which is implicit in any contract negotiation in the comic-book field. The Kitchen vs. Simpson anecdote is only there by way of illustration. The point is to identify the problem areas by means of anecdotes which illustrate what makes them problem areas and then to come up with a spectrum of options which the two parties can agree to at their own discretion. And to always have the status quo as an option for those who favour the status quo for whatever reason.

Heidi MacDonald:

Heidi MacDonald is far more obsessed with Hollywood than I’ll ever be (and her comments reflect that obsession)—the subject really doesn’t interest me—but there’s no question that Hollywood and merchandising get into very complicated areas very quickly. However, I do think it’s worth pointing out that the Teenage Mutant Ninja Turtles phenomenon only "dealt" the creators "into the equation" right at Ground Zero because they were self-publishers. It isn’t just that Kevin and Peter got a cut of everything that had the Turtles on it—that arrangement isn’t completely unheard of—it’s also that they were the ones who decided what the Turtles were going to go on and, in my view, it is only because they were both the proprietors and the creators that the cultural phenomenon lasted a lot longer than most of them do because they did put some limits on what was done according to their own ideas of what was a good product and what was a bad product. Had they been under contract with a publisher they wouldn’t have been at the center of it, they would’ve been, at best, in the first row and that’s not where the decisions are made. Mark Friedman, their super-agent, knew how to parlay each success into the next success, but he had to bring the proposals to Kevin and Peter for approval. So to me, this is also a contractual issue and I cite Kevin and Peter as an anecdotal example of how you do the Hollywood/merchandising thing right. Make sure—as Kevin and Peter did, either intentionally or accidentally—that you are the one, contractually, who makes the final decisions and who chooses the guy who is going to go out and represent your intellectual property in the marketplace. And here I’ll use myself as a contrasting anecdote when I was negotiating with DC over the rights to Cerebus in the late eighties. At DC—at least when I was negotiating with them—you signed with DC and then took your seat in the second row behind DC and DC was in the first row, but Ground Zero was LCA, the Licensing Corporation of America with their inch-thick colour catalogue of products that they put DC’s intellectual properties on. That was something of a deal-breaker for me, right there. Flipping through the catalogue in Bruce Bristow’s office and thinking, "not only do I not want my character on any of this stuff, I wouldn’t have any of this stuff in my apartment no matter whose character was on it." From the second row, I wouldn’t have had a word to say on the subject. The head of DC’s Licensing Department would be told what products Cerebus was going on at the direction of the appropriate figure from LCA because LCA is a much bigger company. I’d get a cut on every item that sold, but if they were peddling it to nine-year-olds (which was pretty much all they did) and the nine-year-olds didn’t want it, you would (in my view) destroy your own credibility by "selling out" while also not making a nickel because none of the stuff sold and not being able to do anything yourself because you had sold all of the rights.

The downside for me is that—on a hit like the Turtles or, even a minor hit in comparison, like Spawn—the demands of maintaining your control over what is done with your intellectual property means that you quickly become the CEO of Turtles, Inc. or Spawn, Inc. and that’s a more-than-full-time job right there and pretty soon you don’t have any time to write and draw your own book. There wasn’t an amount of money in the world that interested me as much as writing and drawing my funnybook. And a lot of my comments are addressed to the tiny minority of cartoonists who actually think that way. Most of them say that they’re really devoted to the comic-book medium, but most of them are really just interested in getting a Big Fat Hollywood Deal.

Sorry that this is all, as Heidi puts it, "dense reading" but in all of these areas, to me, exhaustive discussion is key. Trying to improve the comic-book field and the fighting odds that the next generation won’t get taken to the cleaners as easily or as readily as previous generations did is certainly going to make me seem "un-cool" (and there is nothing today which is deemed to be more "un-cool" than holding opinions more complicated than assessing what is "cool" and what is "un-cool").

I beg to differ. To me, these are important adult subjects having to do with people’s livelihoods and decisions which can mean the difference between abject poverty as lifestyle and a comfortable and secure niche within the comic-book field’s confines where the work you produce in 2005 will still be paying you dividends in 2060: the difference between "Jerry and Joe" as the standard of how we do business and "Kevin and Peter" as the standard of how we do business. Neal Adams and Jerry Robinson won a stipend for Jerry Siegel and Joe Shuster from DC through exhaustive discussion and negotiations. My intention with the ground work on the Manifesto and Scott’s development of the Bill of Rights built on that foundation and only got as far as they did through exhaustive discussion. I intend these exhaustive discussions only for those who understand that there are business implications of any intellectual property you create which exist at the moment that you create it (or even before you create it if that’s the point where you begin negotiating) and that you can retain them or lose them at your own discretion in a real world where, as Will Eisner and Denis Kitchen and Dave Sim all agree, "In the marketplace moral rights are often disregarded". It is my own considered view—with all due respect to Will’s memory and to Denis’ undoubted abilities—that it is worthwhile to identify what moral rights are most often disregarded and how to legally make sure that they are not only regarded but also dealt with in a straightforward, up-front, commonsensical, and mutually advantageous manner. The fact that many creators will benefit from that groundwork without contributing to it—even while deriding it and dismissing it and making fun of it—to me is just built into the equation. Today’s generation of creators have reaped many tangible rewards from the pressure brought to bear on DC and Marvel by the evolution of independent publishing and self-publishing in the 1980s. The decade began with DC and Marvel maintaining steadfastly that if they had to increase the page rates or give back the artwork, they would close their doors instead and ended with Neil Gaiman getting unprecedented creator control and compensation on Sandman to both DC and Neil’s—and the Direct Market’s—benefit. As I said at the beginning, that didn’t happen in a vacuum—it was the result of a lot of hard work by a lot of people who didn’t benefit to the extent that Neil did.

On the subject of Spawn 10 and my own view that if Todd pays me $100,000 for a comic-book story he owns that story outright, no questions asked, I consider that to be a lunatic extreme and a no-brainer. At what dollar amount would I maintain the same view? If DC offered me, say, $10,000 to write an issue of Batman, would I do it? Unfortunately for the sake of the discussion, in my own case, I only got to where I am today by not dealing in hypothetical scenarios and that’s something that I definitely recommend as a guiding philosophy for any comic-book creator. Deal with actual offers with actual dollar amounts attached and negotiate on the basis of what you are presented with and don’t waste five seconds of your life thinking about what you would do IF… you were offered something else. I did the issue of Spawn because Todd offered it. I did the Turtles cross-over because Kevin pitched it to me. In my experience everyone has enough real decisions to make and getting bogged down in hypothetical decision-making means that you are not giving your actual decision-making your full attention and, therefore, increasing the likelihood of making a serious mistake.


Next: A Letter from Steve Bissette 2 Steve Bissette responds to the previous chats, online discussions, and letters concerning The Creator's Bill of Rights.

The Creator’s Bill of Rights main webpage