My Tripod Page
The Creator's Bill of Rights:
A Letter from Dave Sim 5

Below is a letter from Dave Sim where Dave addresses Steve Bissette's previous letter, Gary Groth's (as well as Steve's) comments from The Pulse thread, and Colleen Doran's "What Your Publisher Won’t Tell You" pamphlet. -Al Nickerson

10 June 05

Hi Al:

Thanks, as always, for keeping me up-to-date with all of this. In response to a few of the postings that you got, I am still seriously e-mail averse. As it stands, most days I am still working from about 9 am until 7 or 8 pm just keeping current with my mail, so I can’t really see where I would squeeze e-mail into my day even if I was to get the capability. Likewise with joining the discussion at the library here in town. It takes me about an hour at least to get my responses into a form that I think reflects what I’m trying to say and, in the case of Steve’s monster post, it took the better part of a day to reply to it and then another half day to "video game" it—zapping subordinate clauses into their proper places, adding pronouns where I forgot them and just generally making the whole thing more literate. And usually while I’m doing that I’ll come up with another example of what I’m talking about so that has to be added in. In short, I have the same problem with my mail and my participation in these discussions and answering the questions for the Cerebus Yahoo Newsgroup and doing various interviews that Steve Bissette had with Tyrant. They inevitably start "hatching out" from the middle of what I thought I intended to say and soon a half page courtesy response has turned into a five-page discourse.

Colleen Doran

I guess what I envision in the way of "specific info" would be generalized umbrella topics with either current or outdated or Virginia-specific examples. The zoning example that she used which cost her her condo seems to me a good example. Even though the laws for Virginia Beach are going to be different from Alexandria and different from state-to-state and probably different from condo to condo, I think it is worth emphasizing these kind of things in a general way just as Colleen did with the condo example. Wherever you choose to live, whether you choose to rent or to own the premises, there are any number of overlapping jurisdictions that are involved. If you are going to write and draw and publish your comics from your residence, you have to know if your residence is zoned for that and know that zoning designations are never permanent. It is well worth a trip to City Hall and to the City Clerk’s office to inquire about the zoning specifications for wherever you’re living and to research the history of the area that you are moving into. Has it recently been zoned for commercial and residential use? Are there appeals pending against the designation which could overturn the designation and revert it to strictly residential? The sort of people who use the catchphrase "s**t happens" usually don’t do basic research of this kind. And of course it is worth knowing the structure of the organization running your condominium going in. If it’s completely democratic—that is the directors are elected on an annual or semi-annual basis—then I think you’re just asking for trouble because the policies of your condo are going to migrate with the political composition of the directorate. As Colleen says the way the political winds were blowing at her place you could run a daycare operation in your condo and no one would say boo, but an art studio was something else from the collective vantage point. It seems to me that most condominium organizations are analogous to Survivor. You establish what kind of a condo you have by who you vote off the island.

I don’t think I ever actually got a copy of Colleen’s What Your Publisher Won’t Tell You (probably because my publisher was inside my head and tended to tell me whatever I wanted to know) or it would be in the Archive somewhere but from what I remember of discussing it with Colleen over the phone there were at least two and possibly three illustrators’ organizations or guilds that she either belonged to or with whom she was in regular contact that offered either pro bono legal advice or legal-advice-tailored-to- income-levels and (also from what I remember) this had, at the time, been recently expanded to include comic-book artists so that might be a good place to start. How welcome are freelance comic book artists these days? I also seem to recall that a lot of the research that went into the brochure stemmed from the dramatically different treatment Colleen got as an illustrator and as a freelance comic book artist and the extent to which illustrators had been organized for some time and sharing information that comic book artists not only don’t share but of which most of them aren’t even aware. I think if Colleen could provide website addresses for the various illustration umbrella groups and organizations that it might prove an eye-opener for some comic book people just to see what a little organization and shared information and resources can accomplish.

Gary Groth

Well, whether or not Steve actually ‘backtracked’ on his "arm-twisting" comment and the extent to which he and Scott had to fight or didn’t have to fight to get the Creator’s Rights coverage that they got, I think it’s only sensible to take Gary at his word that he’s been in the forefront of the Creator’s Rights cause and accept the fact that he’s here participating because he wants to participate. Certainly it’s easy to forget (just to cite one example) the contrast between the Comics Journal’s (as Gary says) "ferocity and determination" in getting Jack Kirby back his artwork from Marvel versus the Buyer’s Guide’s go-slow, Rodney King-style "Can’t we all just get along?" approach to the same issue. As I recall Don and Maggie Thompson’s approach was always that you were going to get further with Marvel by being cooperative and understanding of the dynamics at work between the executive and editorial levels (which tended to be reinforced by their own close relationship with Jim Shooter and the confidences he shared with them about the balancing act he had to maintain and the business realities he had to accommodate) than you were by trying to force them to do something. In retrospect I would say that the Journal’s approach was the more effective one. Given that Marvel had no legal obligation to return the artwork—it is a recurrent motif in the field, the conflict between ethical and legal choices—the only way to get it back was to shame Marvel into doing it by turning the weight of public opinion against them. No question that Gary and Kim were at the forefront of that battle and I’d venture to say that it probably cost them in circulation since these are exactly the sort of situations that makes the comic-book field run screaming, insensibly, in the other direction. If presented with a clear dilemma of whether to choose to support Marvel Comics’ position or to support Jack Kirby’s position, 90% (a conservative estimate) of the comic-book field made the resolute choice to stop buying the Comics Journal: a clear case of killing the messenger (or at least making sure you aren’t home when he’s delivering his message).

I think the conflict of interest that Steve is referring to is more along the lines of a publisher of comic books also publishing a magazine about comic books which purports to set the standards for comics criticism in the field. There are certainly arguments which refute the charge—the slice-and-dice job on Jaime Hernandez (with which I vehemently disagree: I’ve always liked Jaime’s work more than Gilbert’s) in the latest issue being a good example (poor Jaime! I remember thinking: It used to be that you could at least count on a free ride in the Journal as one of the job perks of being a Fantagraphics creator). On the one hand you can say that that illustrates the Journal’s flawless integrity. On the other hand—and in the larger sense in which Steve intends his criticism—I don’t remember the New York Times Book Review publishing novelists for exactly the conundrum it would present. How could they help cover-featuring and playing up "their" novelists and how could anyone take any cover feature or review seriously that did feature "their" novelists? A rave review would look transparently suspect, a tepid review would look coy and a negative review would look schizophrenically dissociative. I realize that Gary doesn’t see it that way, but I think that just puts him at odds with common sense and that we’ve all been waiting two decades now for some sort of acknowledgment of the optics involved if nothing else: "Yeah, I can see how this looks bad, but I think the good that the Journal does and the quality of the creators we publish takes precedence over the optics." But, I also think we know that that’s his position without him having to enunciate it.

I think Rick Veitch’s is the more telling point—that a "thread" where he and Gary had crossed swords over Newswatch’s "gutless (Rick’s term: I never saw wit) coverage of the ‘Save Fantagraphics Fundraiser’ Story’" has been deleted seems to cut closer to the bone. There is no question that it’s admirable to have a certain level of public self-criticism when you think your integrity has been compromised as the Journal did with the Amazing Caper of the Missing Rolodex but it’s quite another, I think, to delete outside criticism and does, to me, point to a conflict of interest. Is there any way to restore a thread once it’s been deleted or for Rick to at least have the option of summarizing where the discussion got to before Gary pulled the plug? I think the conflict of interest between being a publisher of comic books and a publisher of a magazine of news and criticism about comic books is readily apparent in the fact that Gary and Kim had very good sources for the Fantagraphics Fundraiser story—themselves—and if they were really going to do a balanced, in-depth, hard-hitting expose they could’ve run a sidebar specifying exactly how much each of the creators had been owed and for how long and then asked themselves some hard-hitting questions about how the decisions are made at FBI relative to salary and printing bills and royalties—which take precedence? How much had Fantagraphics paid in salary over the period where the debt had accumulated and how much had they paid in royalties? And to whom had the salaries been paid? The optics of, say, Gary Groth getting paid $60,000 a year in a period when Jaime and Gilbert’s total amount owed was, say, $30,000 out of which they had been paid, say, $8,000—well, it may not be exactly on the scale of Enron, but to the uneducated leftist eye it would look roughly comparable—the fat cats getting fatter at the expense of the little guy.

I mean, I can just leave it at that and score some cheap brownie points but I think it’s more valuable to actually discuss the underlying issues—the small margin that all comic-book publishers are operating on and the cash flow problems which result. To return to my earlier contribution, it bothered me back when Deni and I were still running the company that she and I and Karen were on salary and the various creators were just getting a royalty based on sales of their books because of the relative amounts in real dollars involved. And certainly when you look at the books you can see that printing bills and salaries were the largest expenses that the company had. And of course the unhappy reality underlying the situation is that you can get comic book artists and writers to work on a royalty "piece work" basis but you sure can’t get office staff to work on that basis. Had we tried to tell Karen that she would get 3 cents for every comic book that we sold, the question would’ve been, Well, how much does that add up to? And, had we answered honestly and said, We have no idea, we have to wait to see what the orders look like and then wait for the distributor cheques to come in her answer would’ve been, Forget it. In the real world the first thing you want to know is how much you’re going to get paid and your central article of faith is that once that amount is set, it’s locked in. Denis Kitchen has said that when he started Krupp Comics Works, he didn’t pay himself for years because he was in full-bore hippie mode. For the businessman to make money off of the work of artists was viewed by him as corruption pure and simple.

I think what tends to take place (or what I HOPE takes place) in the comic book field is what took place when Deni and I were running the company. We paid ourselves what we could, when we could and Denis did the same thing—I mean he’s here and walking around so he must’ve bought groceries with some amount of money that came in however much each morsel of food must’ve stuck in his craw as he realized that it had been wrenched from the hungry mouths of the working class hero proletariat comrade cartoonists he was publishing. The problem comes in when you are paying yourself on a "real world" basis—no matter what, I get paid my salary—and paying your creators on a "comic book" basis—we’ll pay you what we can after we’ve gotten our salaries and the printer has been paid and only after the distributors’ cheques have come in. This is hidden from view but it does seem to me a key point of creators’ rights. If a company is having trouble meeting its payroll and other financial obligations, I don’t see anything wrong with contacting the creators and saying, "Look, we’re sorry, but we’re going to miss your next royalty payment and the one after that. We owe you $20,000 on paper, but all we can afford to send you is $800 right now and that’s probably all you’re going to get until at least November" as long as the publisher in question is willing to share the pain. That is, the printer has to get paid—that’s real-world stuff again—but I think the publisher and office staff should take a pay cut if the creators aren’t getting paid their royalties on time. There’s no way to check that, obviously, but I do think it’s an example of ethical conduct. Cash flow is always a core problem in any operation smaller than Time Warner. You pay out enormous sums of money until all of your cash reserves are low or depleted or you’re actually leaking red ink and then 30 days or 60 days or 90 days later enormous sums of money come pouring back in and you’re able to pay off your past obligations and your present obligations and have some small amount left over. And then your cash reserves are low or depleted again. My theory—after my first drunken rock star period—was to always have enough money to cover "ebb tide".

[And here, I think, we arrive at a very simple and basic lesson in bedrock economics that applies to small comic book companies, self-publishers, freelance cartoonists and cartoonists under contract:]

It’s actually pretty easy to calculate "high tide" and "low tide" in your cash flow. All exceptions and accounting complexities and variances according to different tax codes duly noted, it consists of two amounts: the most money you’ve ever had in the bank at one time and the least amount of money you’ve had in the bank at one time. Everyone knows those amounts. If the amounts are $9,000 and minus-$800 then your "tidal range" is about $10,000. So the most sensible thing to do is to build up a nest egg of $10,000 and leave it there—which is very difficult for most people to do. Particularly in a materialistic society like ours, the societal consensus is that you don’t live like a poor person if you have $5,000 in the bank. But my point is that you don’t really have $5,000 in the bank in terms of cash flow. If $5,000 is your "high tide" amount, what you have is a combination of $5,000 and minus-$5,000. If you scrimp and save and get that amount up to $8,000 then you have $8,000 and minus-$2,000 in the bank. It’s only when you get up to $10,000 that you have a positive cash flow. If you can get it up to $11,000 then you have a combination of $11,000 and $1,000. They are both positive amounts. That’s an oversimplification, but I think that’s what’s required to discuss the subject intelligently. I just want to give you an overall picture of what I see as a core problem in the comic-book field which is that everyone is dramatically underfinanced. It’s actually a mark of the health of our industry that so many small and solo comic book companies exist that started with virtually no capitalization. I don’t think Gary and Kim had two nickels to rub together when they started Fantagraphics, relatively speaking. Nor did Deni and I when we started Aardvark-Vanaheim. Nor did Denis Kitchen when he started Krupp Comix Works. So, I think we should give ourselves a nice round of applause for being real bareback entrepreneurs, working without a safety net or whatever analogy you want to draw. But, at the same time, I don’t think anything has changed dramatically and, if anything, the lesson has been confirmed in another direction entirely. A company like CrossGen—which did have sufficient start-up capital commensurate with its ambition to be a Real Comic Book Company, an amount that dwarfed what Gary and Kim and Deni and I and Denis probably had rolled together after our first five years—went out of business really, really quickly and Fantagraphics and Aardvark-Vanaheim are still here. Real-world business advantages do not translate into success automatically in the comic-book field. And there are many areas where the real world just doesn’t apply to the comic book field. Let me cite a personal example:

When we finished issue 300, I decided to take a cut in pay, as did Gerhard. Ultimately I decided to take as little as I could possibly take just to keep up with my expenses. Ultimately it seemed ridiculous to me to be taking x number of thousands of dollars out of the company every month and paying y number of thousands of dollars to the Canadian government to do so. Every time I paid myself I had to pay the government and I was just throwing my latest of amount of personal money of money on top of the money I hadn’t spent from last month and the month before. It just seemed more sensible to pay myself what I needed to get by and leave the rest with the company since I own 60% of the company. It’s a very different way of looking at things. In the real world you always want to be getting paid what you got paid last week. But, then, many if not most large companies are awash in red ink and their executives are still paying themselves performance bonuses. In the real world you would file for bankruptcy long before you would take a cut in pay. So, that’s one of those areas where I disagree with the real world. I’d rather sacrifice immediate personal gain for long-term security. I’d rather pay myself less and lower my corporate and personal tax bill than pay myself more and have to worry about maintaining a large enough cash flow to pay myself and my taxes. Conventional accounting wisdom would say, "Sell some of the artwork to pay your salary and give yourself a raise and keep current with your taxes." Well, I’d rather have the artwork. The artwork is increasing in value at a much higher rate of appreciation than my RRSP is or the highest rate of return I could get on Treasury Bills or a hot stock. I’d be selling something for a fixed amount of money that would probably lose a good chunk of its buying power even as I was spending it. And I’d have to give anywhere from a third to a half of whatever the artwork went for to the government. These are things that creators have to decide for themselves but I think it worth thinking of them in comic-book terms rather than real world terms, given that the two ways of thinking are radically different. There was no question in my mind from 1978 on that I needed to sell the original pages for a number of years just to make ends meet. It was just artwork that had already been photographed and had been used to produce the comic book. It was basically useless detritus of the printing process and it only made sense to exchange that worthless detritus for actual money. I couldn’t trade my artwork at the grocery store for the Kraft dinner that Deni and I were living on, but if I traded the artwork for money, I could use the money to buy Kraft dinner. So, it was a no-brainer. I sold the first page to Cerebus No. 1 for $10 to someone and it sold a couple of years back for $10,000. In conventional terms, I would be miles ahead today if I had found just about any other way to make the $10 I made back in 1978 selling that page and hung onto the page instead. It’s certainly the only asset that I possessed that accumulated anywhere near that dollar value in the last quarter-century. It’s something that you have to pay attention to as a creator. Any creator with a name in the field usually has that name based on a given body of work that he produced. For example, the highest priced John Byrne pages are still the run of X-men that he did with inks by Terry Austin. How many of those pages does John Byrne still have? Same situation. Whatever he sold them for in 1979, 1980, 1985 based on the appreciating value of what those pages are going for today, he would’ve been better served to have hung onto them and made that same amount of money just about any other way. At the time it seemed like a no-brainer. At one time, you could’ve bought every Cerebus page we owned for $100 each and we would’ve thanked you for it and probably have given you twenty percent off and delivered them to your house anywhere in North America in person. That isn’t an exaggeration. Our accountant would’ve applauded us for fattening up our bottom line for the third quarter of 1990 (or whenever it would’ve been). And then we’d have spent the money and would be watching today (as we do) as those same pages went for between $700 and $900 each. The real world of accounting doesn’t think that way. To them, the thing is to have a bigger third quarter than a second quarter, a bigger fourth quarter than a third quarter a year-over-year increase of x% in retained earnings and after-tax profit. But it seems to me ridiculous to sell something in 1990 for $100—$100 that I don’t need—and that I could sell for $700 in 2005. Or to sell it for $700 in 2005 if the price has never gone down and has actually been increasing at a regular pace that is way, way ahead of inflation. The worldwide comic-book nation is a reality unto itself with its own internal economy, parts of which are outpacing the real world economy by a wide margin several orders of magnitude above the appreciation of, say, Microsoft stock. It is very specific. Steve Bissette drew a lot of comic book pages in his career, but the amounts being paid for his Swamp Thing work with John Totelben are, again, several orders of magnitude above what is being paid for his non-Swamp Thing work, the work he did as a near-rookie in the comic-book field. The earliest Cerebus pages go for a lot more than the later Cerebus pages in most cases. It’s not a matter of which are the better pages in any objective artistic sense, it’s the pages that posterity focused in on. When Steve sold the last of his Swamp Thing artwork that he still owned it was to a famous Hollywood director who was about the only person at the time in a position to offer the dollar amounts that he was offering. It’s one of those things that we don’t brag about as the years go by for obvious reasons. When you sell something for $10 that later sells for $10,000 it does tend to make you look like something of an idiot. But, we were really of the first generation of creators who were in that situation because we were in the first generation of creators to get our artwork back as freelancers or to realize that the artwork was a profit center if we were self-publishers. It does seem to me to be the right cautionary note to strike. If you are working on a "hot book" and you’ve never been considered "hot" before and suddenly you’re in demand at conventions, and you’re being interviewed by Wizard magazine the first thing you should tell yourself not to do is to sell the artwork from your hot book because the odds are good that the pages from that hot book will be the pages that will command the highest prices when you are 30, when you are 40, when you are 50, when you are 60, when you are 70 and when you are 80. Think about any creator who became hot overnight and think about the book he was drawing when he became hot and take a look at what the pages and covers from that book are going for. The time you take drawing the original pages and covers from your earliest hot books as a creator is going to pay you the highest rate of return of any other investment you can make in your future. They are worth more than the book that you drew, the collected graphic novel they are reprinted in, any car you could buy, any house you could buy, any RRSP you could invest in and virtually every stock. If you hit it big at age 23 and sell them all by the time you’re thirty and you live to be eighty you are going to have a good 50 years of kicking yourself in the ass for being so stupid. I mean, if you HAVE to sell the pages, you have to. But my point is still valid. If there is ANY OTHER WAY to make that same amount of money, no matter how much hard work it is, you are going to be better off going that way than selling original pages from your first hot book.

Okay, there’s a little honesty for you, but it is very little. I said in one of my earlier pieces that full disclosure is the only way that we’re going to make real progress on the issues involved in creators’ rights.

It would certainly be nice if everyone went public with their financial situation and the balance of what they pay in salaries, printing and royalties and we could look at every nickel and arrive at some sort of consensus as to what an ethical balance would be. It isn’t going to happen, so let me address the issue obliquely and say that even though the reality of that balance is hidden from view, it still exists. There is a reality to the comic-book field and a wide spectrum of approaches to those balances which range from those publishers who pay themselves a fixed salary no matter how their company is doing and don’t pay their printers or their creators to publishers who don’t pay themselves anything, don’t pay their printers and always pay their creators and publishers who always pay what they can to everyone involved. They take a salary when it’s sensible and pay their printers what they can when they can and pay their creators what they can when they can. For the purposes of our discussion here—creators’ rights—I think it is valuable for creators to be aware that those tend to be the primary areas where the publishers are spending the money generated by the comic books that the creators are drawing. Let’s go to the smallest end of the publishing spectrum and look at Drawn & Quarterly where the office staff is basically composed of Chris Oliveiros who owns the place and a full-time publicist. I once asked Chester Brown what he thought of the full-time publicist as an investment and he didn’t really know how to react. He writes and draws comic books, so it didn’t apply to him. I pointed out to him that it’s a salaried position and he’s getting paid a royalty for each comic book and trade paperback that they sell. Louis Riel is one of their biggest sellers, if not THE biggest seller. The money from that book is paying a publicist’s salary, presumably every week. For Chester it was outside of his field of interest. That was why he had a publisher to make those kinds of decisions. As a self-publisher I don’t share that level of faith. I know how much money Aardvark-Vanaheim has and where it goes and that’s one of the reasons that I’ve stuck with self-publishing. If sales are in the toilet, sales are in the toilet. I’ve got the numbers right there to tell me as does the freelance cartoonist with his royalty statement (assuming that the royalty statement is accurate which is a leap of faith in itself). It’s very easy as a freelancer to say that your book would sell a lot more if you just got some proper advertising. It’s another thing when you’re the one paying for the advertising and you see what they’re getting for a single page in Diamond Previews these days. It’s very easy to do the math. This is how much money we make on each trade paperback, between what we paid for printing and storage and the discount that Diamond gets off the cover price. This is how much they want for a page in Diamond Previews. Divide the first amount into the second amount and that will tell you how many trade paperbacks you have to sell to pay for the ad. Now. Do you really believe that the ad—ANY ad—is going to sell that many more trade paperbacks? The answer I always come up with is "no". And even if, by some miracle, the ad was THAT GOOD that it sold x number of hundred more trade paperbacks, all I would’ve accomplished is to trade x number of hundred trade paperbacks for an ad and have come out even. And I’d have to reprint the trade paperbacks that much sooner. What (exactly) is the brilliant concept behind that? But if I was doing a book for Fantagraphics I’d certainly be on the phone to Gary Groth three times a week arguing with him that my book would be selling twice as many if he’d just do some full-page ads in Previews. Same with wanting him to fly me to San Diego. Promotion, promotion, promotion. But how many copies of my book does Gary have to sell to pay for my plane flight and my hotel room and my meals and my space at the Fantagraphics booth? And even if, by some miracle, he sells that many all he’s done is traded inventory on my book for a plane flight, hotel room and space at the FBI booth. What exactly is the brilliant concept behind that?

I went on at nearly interminable length there to demonstrate that I’ve tried to move beyond just scoring cheap brownie points off of Gary. There is a fixed amount of money that is required to keep an operation the size of FBI on its feet and viable and it is HUGE and each time that Fantagraphics gets bigger that high tide/low tide cash flow gets bigger and instead of needing $10,000 in the bank to stay current with your obligations, you need $100,000 or $500,000. The cash flow tidal waves assume tsunami proportions. HUGE amounts going out and HUGE amounts coming in. And the margin is still very small. The bigger the company gets, the longer the period of time you have to endure where virtually every dollar that you get in is required just to pay enough bills to keep from getting closed down by your banker or your creditors. And…

…here we come to the crux of it…

…the more rights that your creators have, the less that you actually own. It’s taking all the running that you can muster to keep from falling behind and when you go to borrow money at the bank and they say, "Well, what do you own? What do you have for collateral?" And what you’ve got is a warehouse or several warehouses full of funnybooks. And that’s about it. And banks aren’t big on funnybooks as collateral for tsunami-cash-flow-sized loans. You don’t even have things like the rights to Superman or the rights to Indiana Jones or Star Wars, so they can say, well, okay. That’s security of a kind. The intellectual property generates x amount of dollars a year in a good year and y amount of dollars in a bad year.

[In 1989, Kevin and Peter could’ve borrowed a certain amount of money based on their ownership of the Teenage Mutant Ninja Turtles. Short term money based on the revenues it was generating over the previous three or four years. A combination track record and current status picture that was very bright, but that amount they could have borrowed wouldn’t have been a patch on what they would’ve gotten for selling part ownership or a complete ownership. The sad truth is that when you need cash and you only have an intellectual property with a profitable track record as your primary asset, no one is going to lend you money unless they’re reasonably certain that they’ll be able to acquire the intellectual property when you default on your loan payments. That is, no one is going to lend you enough money to actually get out from under your debts and walk away with your golden goose. When the Beatles got into cash flow problems they sold Northern Songs—the rights to their music—to Sir Lew Grade for what at the time was considered a lot of money. The Rolling Stones gave Allen Klein their peak music of the 60s to get them out of a bad business relationship with him that was bleeding them white. In both cases the dollar amounts that they realized were miniscule compared to the money the intellectual properties generated then, have generated since and will generate in the future.]

So far as I know—and I hope Gary will correct me if I’m wrong—the only intellectual property rights that Fantagraphics own is their porno line. As I understand it, the porno line is either all or mostly work-made-for-hire and it was purchased at a miniscule page rate that, again, I heard was around $30 a page. It was an intellectual solution to their first major bout of cash flow blues—their spin on the Eclipse approach which was to attempt to do the same thing with super-hero comics—they needed something in the ‘buy low, sell high" category and Porno—and, for a short period, Monsters—was elected. They would do comic books that weren’t very good and pay the artists page rates that were commensurate with that (that is, not very good page rates) and buy all the rights so that if they had a hit porno book, they could keep reprinting it without compensating the creators any further. I think one of the reasons that no one has "called them on it" is that anyone who has been a publisher for any length of time recognized that what they were doing was solving an otherwise insoluble problem. How do you make ends meet when you don’t own anything? Now it gets into interesting ethical areas. i.e. do you still have a Siegel and Shuster situation if instead of Superman they create the porno equivalent of Superman? Again, one of the reasons that you can get away with it is that most guys who would be drawing porno would be doing it because they couldn’t get work doing anything else, ergo it’s sort of $30 a page for porno and all your rights into the bargain or nothing. I drew some made-to-order porno back in the 70s. It’s amazing what you’ll draw for thirty bucks when your other paying markets dry up.
I mean, this is what I read between the lines in what Gary is saying about the situation with Denis Kitchen and Don Simpson over the negatives to Megaton Man. "But if he owned the films, wouldn’t that mean that he also owned the books? And if he owned the books, what exactly did Kitchen Sink own? Nothing?"

First of all, addressing the ownership of the books, I don’t think it’s fair to say that Fantagraphics owns, as an example, all of the copies of, let’s say, Our Autobiography Year in its warehouse. Let’s say that they signed a contract with the creator for a three- issue mini-series back in 1997, solicited the book and got orders for 708 on the first one, 412 on the second one and 80 on the third one. In each case they printed up and are now warehousing between 1,000 and 2,000 copies of each of the three issues. It seems to me that one of the sensible directions it would be worth working towards in re-examining issues of creators’ rights is the disposition of inventory in the event that a book totally tanks. And I think this is one of those areas that creators overlook because they consider it bad luck or self-destructive to think of something of theirs tanking and once it tanks they never want to think about it again, one way or the other. It seems to me that that tends to leave everything up in the air unnecessarily and what I suggest would be a good industry guideline (or, failing achieving a consensus, a good clause for creators considering having installed in their contracts being negotiated behind closed doors) is that ownership of the inventory be divided along the same lines as the compensation contracted for. That is, if the standard Fantagraphics agreement is that the creator is paid 10% of the cover price within thirty days of publication for every copy sold then I think it would make sense to stipulate that if 1,000 copies are left over (three years? A year? Five years?) after publication that it be deemed that the creator owns a hundred of those copies and that when the designated period has expired either the entire inventory is pulped (thus freeing up some warehouse space and coming as a relief to the creator that no one will ever see his unmarketable atrocity again) or 90% of the inventory is pulped and 10% is shipped to the creator. Creator’s call. If you want to forget the book ever existed, we can make it go away. If you want the last 100 in existence to sell at your table in artist’s alley, we can do that, too. You’d have to negotiate shipping costs and you could certainly negotiate for the other 900 at 10 cents on the dollar or whatever was fair, but it would at least address the issue of what happens when a book tanks and then enters inventory limbo, pointlessly gathering dust. And I think it addresses a core element of how the environment operates. Fantagraphics has moved away from the paradigm, but most publishers who are publishing multiple titles are operating on the basis of "throw it against the wall and see if it sticks." It’s not the most attractive way of looking at the direct market, but I do think it’s the most accurate. And I think if we’re going to make progress in the area of creators’ rights it is worth creators genuinely knowing that that is the core of what is going on. If a small publisher agrees to publish your book, he is basically going to throw your work against the wall and see if it sticks. If he gets orders for 3,208, then it stuck (to one degree or another). If he gets orders for 212, then it didn’t stick and, as the creator, it is worth your while to frame your contract with that publisher so that it covers both eventualities. What am I going to put into my contract to ensure as much as possible that I’m compensated adequately if this book turns out to be viable/successful/a hit/a mega-hit and what am I going to put into my contract to make sure I walk away with something if this book turns out to be an also-ran/flop/complete flop/sales disaster?

Well, that’s why I think these discussions are valuable and why I don’t think that the Bill of Rights is outdated or irrelevant. I mean let’s move away from the hypothetical circumstance of Denis Kitchen and Kitchen Sink back when he was still publishing and move to the present-day circumstance of Gary Groth and Fantagraphics Books. What does Fantagraphics Books own? Again, let’s look at Gary’s own words: "…the young creators that I deal with are exceedingly savvy in terms of contracts and rights and we often negotiate details. I think this is because of their integrity and their attempt to preserve that integrity and not due to any legal preparations on their part. Moreover there isn’t only the alternative comics publishers such as FBI, D&Q, Top Shelf, Alternative, et al., but huge multinationals who have entered in comics publishing—Penguin, W.W. Norton, Random House, Scholastic and Henry Holt, among others—giving comics creators even more options and bringing with them the more ruthlessly bottom-line oriented view that was largely missing from the ‘80s. All of the discussion I’ve seen is mired in the 80’s [and] doesn’t appear to have taken into account all of the changes that have occurred over the last 10 years or so, and is largely irrelevant to today’s environment."

It would be nice to have some specific examples of the "details" that Gary "often" negotiates with young creators. That is, I think when you back the argument up from the Bill of Rights stage to the original motivation behind its precursor, the Manifesto, I think its universal relevance soon becomes apparent. As I said in my earlier contribution, when we got down to the nitty-gritty of defining terms and trying to establish who had/has what jurisdiction and how to keep those jurisdictions from overlapping or—if overlapping was implicit and necessary—how to allow those jurisdictions to co-exist in the same ethical space without detriment to either one, the language became nearly Biblical. "In the beginning there is the Work". It seems to me that the further along we get with creators’ rights—and it seems to me that we have gotten very far along considering that all negotiations continue to be one-on-one and behind closed doors—to initiate discussion of what is being discussed behind closed doors which is universally viewed as private, I think what it comes down to is coming up with a checklist of rights that exist in a piece of work as soon as that work comes into existence. A Comic Book Story. It could be five pages or twenty pages or a hundred pages. As soon as it exists it has attached to it certain fundamental properties—which might be a less loaded term than creators rights because I think one of the areas where discussions of creators rights founder quickly is that it isn’t so much about the rights of a creator which are the same inalienable rights as every human being as defined by (depending on your preference, the US Bill of Rights, the UN’s take on it, the "down for the count" EU Draft Constitution, Amnesty International, Doctors without Borders and whatever else). No, the question is what are the inherent fundamental properties housed within any intellectual property? Men in Black and Ghost World started as comic book stories. Individuals took x-number of sheets of drawing paper or art board, a bunch of pencils and erasers and ink and whatever else and when they were done there existed an intellectual property—or, to me more the point, intellectual properties, plural. And in both cases it turned out that one of the properties was a movie. Twenty years from now one of those properties could be a Broadway musical. Or a video game. Or an animated cartoon. But the properties, plural, aspects in my view pre-exist. Before it becomes something else, it is a comic book story. To really fine-tune the discussion, before Teenage Mutant Ninja Turtles No.1 was a comic book, it was a comic book story. Publication is what changed it from a comic-book story into a comic book. The comic book is one of the properties contained within the work. A comic-book story can become a comic book. The comic book itself doesn’t become a movie, the comic-book story becomes the movie. So I think the most obvious next step in creators’ rights is to define all of the things that a comic-book story can become and try to make creators understand that all of those things—potentially—exist within the pile of pages that they have produced.

The stage and intent of negotiation becomes key. If a young creator has brought two sample pages, an outline and a script to Gary and wants Gary to finance his turning it into a finished comic book or graphic novel for Fantagraphics, then I really think that’s very different from a young creator mailing Gary photocopies of fifty finished pages and asking if Gary wants to publish them. It is only at the point where a comic book story exists in finished form that it is imbued with those self-contained and inherent properties of what is described as The Work. To keep the boundaries of the definition as sharp as possible you would have to say that the fifty pages only constitute the absolute form of the Work if the fifty pages present and therefore represent a self-contained story. Beginning, middle and end. In that case the only people who have clear title to all of the properties inherent in The Work are the ones who had a hand in creating those fifty pages.

In light of that absolutist definition—you don’t have to adopt it as your own, I’m just explaining how I see it—let’s examine our medium’s most famous example of Superman. Right away we see that the absolutist definition doesn’t hold. What was presented to DC wasn’t a comic book story but a series of comic strips which made up a comic strip story. The Work didn’t yet exist. It contained some of the inherent properties of the intellectual property, but not all of them. As soon as Vin Sullivan or whomever expressed interest and told Jerry and Joe to re-paste their comic strip story into comic-book pages, The Work changed. It was a comic strip story and—on someone else’s direction—Jerry and Joe turned it into a comic book story. Note – it wasn’t a comic strip by my absolutist definition. To be called a comic strip, it would have to have been published in a newspaper. That’s what makes a comic strip story into a comic strip, publication in a newspaper. I don’t think it’s a minor point. The Superman comic strip story had made the rounds of all the syndicates and had been rejected by all of them. But, we’ve all seen the story in Action No. 1. Alex Raymond it wasn’t. Jerry and Joe could’ve continued freelancing their other material to DC and chosen to be patient and Joe could’ve redrawn Superman as a comic strip story several more times and one of those future incarnations might’ve found a home at a syndicate in 1940 or 1942 or 1948. But, it seems to me that by bringing it to DC in its comic-strip-story form in 1938 and agreeing to re-do it as a comic-book story which then became a part of a comic book, they brought DC into the creative process.

Let’s use a more modern example of Andy Runton’s Owly: The Way Home at Top Shelf. Andy showed his primitive seven page stories to Chris and Rob at Top Shelf. Chris and Rob liked what they saw but said that the stories were too short for what they were doing and for what was going on in the comic-book field and they advised Andy to do similar material, but longer. Again, the absolutist definition doesn’t hold. Andy brought them prototypical mini-comic stories (the closest analogous format that we understand a seven-page comic book story to be) and they essentially told him to turn his mini-comics into graphic novels to make it more viable commercially. The Work known as Owly only assumed its structural form with the direction/suggestion of Chris and Rob which means that Chris and Rob are, to one degree or another, co-creators of Owly. I say that they are co-creators because they participated in the shaping of the material before it actually became the Work—the pile of original drawings that made up the comic-book story Owly: The Way Home before it became the first Owly graphic novel. Again, I don’t think it’s a small point. Andy had the option to disagree and go off and do Owly mini-comics in his spare time, trading them through the mail with other mini-comics guys, in which case he would be the sole creator-proprietor of Owly. The fact that it got turned into a graphic novel means that Chris and Rob are co-creators. It became what it became partly because of their input. How important was their input? Well, that leads us to a core problem because there is no control group. We have no idea what might’ve happened with Owly if Andy had chosen to just do his mini-comics. It might’ve vanished altogether which would indicate that Chris and Rob are significant co-creators. Because of their suggestion it became a cult hit in the comic-book field (so far. Andy’s just getting started). It also became a t-shirt and a stuffed toy. Based just on the mini-comics, it might’ve become a hit movie or cartoon in which case Chris and Rob would be minor co-creators. It got to be a hit movie without first having to become a graphic novel as they had suggested. And let me hasten to say that, knowing Chris and Rob and the unquestionable ethics which they attach to their work at Top Shelf, there is no way that they would regard themselves as co-creators or see themselves as having a stake in Andy’s intellectual property. That’s a conscious choice but, to me, it doesn’t violate what I’m driving at here. Because Chris and Rob actively did something that made Owly different, they are participants in the process of the creation of the comic-book story, the "prototype-container" of the properties attached to the intellectual property known as Owly. As co-creators and with their own inalienable creator rights, they can say, "Well, don’t be ridiculous. It’s Andy’s book. We’ll take a cut as the publisher but he owns Owly 100% lock, stock and barrel." They can also choose to put that in writing or to just accept that it’s a given and that it doesn’t need to be addressed. They’d probably get irritated a bit that I would even suggest such a thing, but I think—in the context of creators’ rights—its important to keep the definitions as sharp and distinct as you can. If Andy had brought the complete work Owly: the Way Home to Chris and Rob he would be the 100% creator of it. Because he brought it in another form and accepted the suggestion to change it into something else, he isn’t the 100% creator of it.

I can understand people thinking that this is hair-splitting sophistry, so let me explain why I think that isn’t the case. Creators’ rights are composed of both legal implications and legal inferences which attach themselves to the inherent properties contained within the intellectual property which I’m calling The Work. Especially when you get to the stage of the multi-million dollar movie—as Steve pointed out with the deal for the From Hell scripts, it was the studio lawyers who went ballistic because one of the things studio lawyers earn their money doing is making sure that no one has a claim to any intellectual property rights that will make up the legal core of the movie that their studio is making (besides their bosses). All implications and inferences are to be addressed in writing and signed, sealed and delivered or nobody gets his big cheque with all the zeroes on it. One of the reasons that it has all the zeroes on it is to make sure that you’ll fold like an accordion if they run across any "t" that isn’t crossed. As happened in this case. The movie money made the script-book money look like chicken feed, so the script-book goes the way of the dodo.

So, let’s say that Andy gets an offer for Owly the movie and decides to go for it. One of the first things they’re going to ask him is, "Are you the sole proprietor? Is there anyone else who could challenge your sole ownership of this intellectual property?" And they usually make the implied threat stick by telling you that if it turns out that you’re NOT the sole proprietor and someone sues them who is the sole proprietor or a co-proprietor, that you will be held personally liable for their losses. The correct answer would be that Chris and Rob could mount a successful legal argument for a cut. They probably couldn’t get a co-ownership deal out of it but, presented to a studio lawyer that it was their idea to expand the mini-comics to graphic novel length that would mean, at the very least that they would have to be addressed. Either Andy would have to get them to sign a waiver disclaiming any share of ownership or the movie studio would have to cut them each a cheque with a number of 0’s on it to get them to sign something comparable.

Now, let me hook this up with my previous argument and Gary’s non-rhetorical question "What did Kitchen Sink own? Nothing?" This is where I see overlapping jurisdiction and the structure of our environment needing redefinition because it seems to me that this is an area of overlapping jurisdiction where small, ethically-intended companies like Fantagraphics and Top Shelf might be dealing themselves out of the game where, ethically, they shouldn’t be. If you accept my thesis that these critical distinctions between creation and non-creation and ownership and non-ownership occur very early in the proceedings, then what I think we need is a more formal structure that draws sharp distinctions so as to allow participants to have a share commensurate with their participation while still allowing of the possibility of keeping the integrity of the creators’ claim to ownership and proprietorship of the intellectual properties inherent in his or her intellectual property pristine and un-fragmented if that is what the creator chooses to do. I think critical decisions which shape an intellectual property take place inadvertently and that companies—particularly small ethical companies—need to establish strict guidelines for reviewing material that is being presented to them. Andy Runton brings his prototypical mini-comics, seven page stories to Chris and Rob. They read them. So what do you think? asks Andy. And Chris and Rob have to say, They’re really good. We really like them. And Andy says, "Do you have any advice or criticisms?" At that point Chris and Rob should advise him that that’s crossing a line. Is he asking them as two guys who like comic books? Or is he asking them in their professional capacity at Top Shelf? If the former, then Andy has to be aware that if they come up with a suggestion or a critique that he uses to change any part of his gestating Work that that could qualify them as co-creators of the material if he takes their suggestions. They would have to write down their suggestions and get Andy to sign under it saying, yes, this was what they suggested at this convention on this date and if he changes the material using their suggestions and signs with another company, he’s going to have to advise his publisher that Chris and Rob get a percentage on the book. Same thing if he’s asking them in their professional capacity. If you’re asking the publisher of Top Shelf to critique the material as a possible Top Shelf book and you’re willing to change the book the way he suggests then you’ve entered into a state of "pre-contract negotiation" and ethical fairness would point in the direction of acknowledging that Top Shelf was a co-creator of the property. If you’re presenting Chris with a finished story that you want him to publish in the form that it’s in then that’s a different case. He’ll just say yes or no and you retain 100% control. In the "pre-contract negotiation" stage—notification that a threshold is being crossed by asking a publisher to advise or make suggestions—means the next choice then belongs to the creator. He can cut off the discussion immediately and go home and do a finished version and come back. But if he asks for a professional evaluation of an unfinished work and is willing to change anything you want changed then that’s a different case.

It doesn’t have to be a large percentage. It can be as small as you’re comfortable with. Say half of one percent. Say five percent but, to use an example, let’s say Gary’s at a comic-book convention in 1983 and Kevin Eastman and Pete Laird come up and show him a pin-up of The Teenage Turtles. And they ask him for a critique and he explains that if they want a professional critique—because it isn’t a finished work—if they use his suggestions then he gets a cut and his standard cut is 2.5 percent. And they look at each other and they go, Well, heck, yeah. What have we got to lose? And he looks at the pin-up and says, "Teenage Mutant Turtles would be a lot funnier." And they write the suggestion down and sign it. If that then became Teenage Mutant Ninja Turtles Gary Groth would become a very wealthy man for having come up with the Mutant part because he would own 2.5 percent of the intellectual property. Now, I’m not saying that anyone HAS to do this. I offer a lot of people a lot of free advice by mail and at cons and I have no interest in keeping track of it but I am aware of the legal implications each time I give someone structural advice or content advice about their book. In any given situation my advice may be worth $75 or it may be worth $15 million. But, then I can afford to be cavalier about that because I have a lot more resources in the comic-book field, I own a lot of stuff that I can turn into money if I’m so inclined and if I deem it necessary. My proposal is just a suggestion as to how to redress the balance that I see as having gotten knocked out of whack when creators essentially started getting absolute rights and leaving the publishers with no rights or few rights and certainly few venues by which to profit from being publishers. I don’t know of any other medium where veterans of long-standing in a field are expected to give free critiques and are actually sent material by creators for that purpose. I see no reason why specific advice with a professional standing behind it wouldn’t be worth a point or two and if Gary or Chris Staros or Dan Vado showed an aptitude for it, they could end up with a dozen or two-dozen such contracts which would provide another revenue stream for them no matter who ended up publishing the books in question. It would certainly give publishers an incentive to give better and more specific advice, while still giving the creator the option of taking it or not. If Gary’s advice had been "’Teenage Iguanas’ would be funnier," Kevin and Peter are at full liberty to decide he’s full of it and stick with "Teenage Turtles" and there would be no questioning it. When the Teenage Mutant Ninja Turtles come out, the piece of paper with "Teenage Iguanas" on it is valueless if only the Iguanas part is designated and underlined as Gary’ suggestion. Here’s Gary’s convention form with "Teenage Mutant Turtles" with the "Mutant" underlined, signed by him and Kevin and Peter. As soon as Teenage Mutant Ninja Turtles hits the big time, Gary knows exactly who to contact to get his cut. There’s no question that it would be a headache for the creators, particularly if their book ends up having ten different guys each entitled to 2% of the revenue based on the suggestions that they adopted. But that does seem ethical to me. If it took ten good outside ideas to refine your concept into a marketable idea then you, ethically, owe the people who came up with the ten suggestions their piece of the action.

I think Gary is on dramatically less solid ground when he attempts to discuss distribution intelligently in the context of creator’s rights. "Steve argues as if someone had argued that distribution wasn’t important. Of course it’s important. That’s why every publisher looks to be distributed by the best distributor he can find. The proposition that an author can ‘control’ his distribution is absurd, prima facie, though. No one can ‘control’ his distribution: you’re at the mercy of so many forces that you can only do the best you can do and pray." On the contrary, this is a key element of creators’ rights, in my view. At the point where you have created the Work, there are many means of distribution available to you. You can hand-sell on the street corner out of a baby carriage as Bob Crumb did with the first issue of Zap. It limits the geographic range of your distribution dramatically, but it does mean that you don’t have to share the cover price with anyone else. You can sell them on your website which is basically the same theory with a wider geographic range but implied limitations owing to the depth of your competition. You are just one of thousands all selling their comic books at their website. You can self-publish and offer your work just to Cold Cut and FM if Diamond rejects you. That limits your volume of sales dramatically but it does allow you to stay in the game. You can hand-sell to the comic book stores in your own geographic area. Depending on where you live—San Francisco as an example—that gives you access to a lot of stores, but it also means that your living expenses are going to be a lot higher. If you live in a small town in Wyoming, your living expenses are going to be lower, but you’re going to have immediate access to a lot fewer stores. You can just pitch your book to stores and make that the end of your participation. They took twenty copies of #1 and paid for them, end of relationship. Or you can do the job of a distributor in more traditional terms and drop back into that store once a week to count up the number of copies sold and to make sure that when the twenty are gone that you’re right there to sell the store another twenty. That’s maximum distribution control because you’re maintaining the supply line personally and servicing the demand within a seven-day window if you’re going in once a week. That’s very efficient. Of course you have to decide how much of your working week you want to devote to that. If you’re devoting five hours a week—including travel time to and from—to performing maximum distribution efficiency in four stores and holding down a full-time job and you only have eight hours apart from that to write and draw your book then you are probably devoting too much time to distribution and not enough time to writing and drawing. There you are both choosing and controlling your means of distribution, allocating your own time and energy to distributing your book. Most self-publishing cartoonists choose a range of distribution methods. They trade with other cartoonists, they exhibit at conventions, where the cost of the table has to be subtracted from revenues generated. You earn the cover price of each copy sold without having to share your revenues, but you have fixed costs that need to be factored in as well as nebulous benefits such as wider exposure, "getting your name out there", networking with people who might be able to do your book some good, etc. They sell to Diamond where they get paid 30 to 45 days after shipping for every copy Diamond orders. They sell to Cold Cut and FM where they might get paid 60 days, 90 days or 120 days after shipping depending on how those companies’ cash flow is going at the time, but again, they will get paid for every copy ordered when they do get paid.
Or they can sign with Fantagraphics and opt for removing themselves from the distribution decision-making. I assume that you don’t consult with your cartoonists about your own decisions of what mix of distribution you’re going to do. So, a creator offering his book to Fantagraphics knows that the theory at Fantagraphics is "Every publisher looks to be distributed by the best distributor he can find…you’re at the mercy of so many forces that you can only do the best that you can do and pray." So, that is what a cartoonist has as part of his deal with Fantagraphics. Gary Groth will choose how your book is distributed and then pray on behalf of your book for you. It’s certainly an option. If I was thinking of going with Fantagraphics, one of my questions would be "What are the terms of Fantagraphics’ distribution deal with mainstream bookstores? Will my book get everywhere that the Complete Peanuts is getting?" I suspect the answer might be a little coy—your book will be offered to all of the outlets carrying the Complete Peanuts— which isn’t the same thing. Peanuts is a very bankable name, perhaps the most bankable name in the comics field. While you can argue that hitching your wagon to the Fantagraphics star means that you’re hitching your wagon to Peanuts, I’m not sure that with a hard and dispassionate look at the distribution structure that that would end up being true in any meaningful sense of the term that you would intend and you would not be doing yourself or your book any great favour. As constituted, what’s good for Peanuts is good for Fantagraphics at this point, but what’s good for Peanuts I don’t think is necessarily good for Eightball or Love & Rockets. That’s an individual call but I think it’s worth seeing that emphasis is a key element. The Fantagraphics that Dan Clowes signed with whenever he signed was a different Fantagraphics from the Fantagraphics which exists today. That’s something that you have to understand as a creator. If you sign with a company that is devoted 100% to the direct market and the comic book stores that’s how your book is going to be sold. If that company then has a huge mainstream success, that company’s attentions are going to shift so that 50% of its time is devoted to the direct market and to comic book stores and 50% of its time is devoted to servicing the perceived needs of B. Dalton and W.H. Smith and B. Dalton and W.H.Smith are not big risk-takers when it comes to figuring out how to sell 10 copies instead of 3 copies of My Autobiography Year unless My Autobiography Year is attached to a film project that has been green-lighted for next spring and then only for the period that the film is perceived to be "hot". After that, it’s just the comic book that that "hot" movie that came out two years ago was based on. Yesterday’s news, in other words. And not only are you not a participant in the distribution decision-making, you’re not likely to even be privy to the decision-making. If Gary’s prayers prove less than efficacious and the mainstream distributor that he signed with goes out of business owing Gary $300,000 then you have to take your lumps based on your decision to entrust your distribution choices to Gary. The final language of the Bill of Rights specified that we have the right to choose how our work is distributed—control got changed to choose. As an example, as a direct consequence of choosing to sell to Diamond Comic Distributors, I also choose to sell to mainstream bookstores where and when those bookstores choose to purchase Cerebus trades from Diamond. Again, I’m not a participant in those decisions, nor am I privy to the decision-making process. W.H. Smith might decide to experiment with three copies of the Cerebus trade in each of their stores and we’ll get an unexpectedly huge order from Diamond for that book. It isn’t going to happen often because that’s not what we would choose to do: our preference is to sell to the direct market exclusively so we give Diamond the same terms on every Star System order. We don’t accept a percentage of returns on a larger order, nor do we extend our payment terms to 120 days for a larger order so there is very little incentive for Diamond to push Cerebus in the high-risk mainstream store environments because they have to assume all of the risk in doing so. It makes more sense for them to work with publishers who are willing to share the risk by taking x number of returns of books damaged while on display in mainstream bookstores and stretching out payment terms to match those offered by B. Dalton or W. H. Smith on a take-it-or-leave-it basis to Diamond. One of the discussions I had with Bill Schanes on my recent visit to Diamond centred on an emerging problem of small publishers treating their projected revenue from a big B. Dalton order as if it was from the Star System, acting as if it’s money in the bank, whereas a percentage of that order is going to come back in the form of returns 120 days out or however long the window is that B. Dalton mandates. If 20% of the books come back then you’re only going to get paid for 80% of your order and that can be a significant difference. Right now we’re negotiating with Diamond to find out if there’s sufficient motive on their part to formally declare that they don’t sell Cerebus trades outside of the direct market in advance of our release of the Cerebus the First Half boxed set at Christmas of 2006. What we’re asking them to weigh in the balance is the number of Cerebus trades they actually sell through mainstream stores—anecdotal evidence would seem to indicate that it is mostly onesies and twosies in the "special order" category—versus the bad faith this engenders with comic book stores that they’re being forced to compete with mainstream bookstores who are being given preferential terms—the right to return a percentage of each order and longer payment terms—in much the same way that we’ve dropped the ads for the trades from the back of the trade paperbacks and Following Cerebus. The number of copies we were selling that way didn’t offset the bad faith I figured that was engendering with the comic-book stores. Now we can honestly say that we’re not competing with them for customer dollars. We’ll have to wait and see how that hatches out, but those are definitely distribution choices that a creator not only can make, but is forced to make when he or she self-publishes—and distribution choices that are completely out of his or her control if he or she signs with a company that has made its own distribution choices that that company is, thereby, contractually bound to honour. That is, by signing with Fantagraphics, Dan Clowes made his distribution choices which were, quite simply, that he would transfer his decision-making to Gary, trust in Gary’s prayers on his behalf and live with the consequences whatever they prove to be.

The most obvious problem that I see with that is that I don’t think the "one size fits all" choices are of benefit to all concerned. What’s good for the Complete Peanuts is probably not good for Eightball and vice versa. And because of the structure of mainstream bookstore distribution deals everyone gets lumped into the same package and given the same narrow window of opportunity to prove themselves. W.H. Smith and B. Dalton may well give Ghost World a try, but I suspect that what will happen is that they will do a brisk business for a short period of time and then declare the book yesterday’s potatoes and remain open to taking a comparable number of Dan Clowes’ next graphic novel. In which they will do a brisk business for a short period of time and then declare that book yesterday’s potatoes. The reason that I opt for the direct market exclusively is that I think the long-term interests of the Cerebus trades are better served there. I’d rather sell ten copies a week of High Society for the next thirty years through comic-book stores than sell four thousand copies of High Society through B. Daltons in the next four months and then nothing after that. The best evidence suggests to me that the former model is the way the direct market is structured and the latter model is the way the mainstream bookstore market is structured.

The latter model seems to be Gary’s choice and consequently Dan Clowes’ as well. I hope they’re as satisfied with the results five years, ten years, fifteen years and twenty years from now as they are with the results they’re getting now.

"I’m sure Tom Clancy is able to negotiate [a] better split with ancillary licensing than Joe Schmoe, and the same is true in comics: I’m sure Neil Gaiman is able to negotiate a better split and more rights generally than Joe Novice. That ain’t gonna change. We have now achieved equilibrium between the respective clouts of authors and publishers." Again, I would consider this a leap of faith. I think it’s always hazardous to look at the high-end success story in any field and draw inferences of how the entire field conducts its business from the exalted example. It’s roughly comparable to saying that lotteries are good things because they provide people with $40 million dollars in exchange for buying a ticket. As far is it goes that’s certainly true but it ignores the net effects of the compulsive buying of lottery tickets on the part of people obsessed with winning and that there are more sensible uses for the amounts of money they continue to "invest" in lotteries. I would suggest—getting back to my original point—that in order for what is at stake to be brought home to creators that it is worth documenting in the form of a list all of the inherent properties which have been proven to exist in a comic book story as the foundational basis for an advisory to cartoonists entering the field either with a concept or with a finished piece of work. i.e. The pile of pages that you have produced could have within them any one of these properties. Your pile of pages could be a kite, a coffee mug, a shot glass, a billion-dollar movie franchise, a theme park, a theme park ride, a soft drink, a breakfast cereal, a temporary tattoo, a permanent tattoo, a bicycle, a toy car, a real car, sheets, pillow-cases, a portfolio, a premium hardcover book on vellum paper, a poster, a print, a lithograph, a CD Rom, a DVD, several DVDs, a print-to-order book, a spoken-word book, a script for a play, a play, a musical, a song, a recording, an oil painting, a series of oil paintings, an art gallery exhibit, a touring art gallery exhibit, a video game (arcade version), a video game (handheld version), a pinball machine, a statue, a model, an action figure, a role-playing miniature and that, LEGALLY you can sign away all of those potential inherent properties just by having a clause in your contract specifying that you are transferring all ancillary rights in exchange for a royalty of 10%. It is worth considering whether the conditions of the terms of your contract are transferable. That is, you signed the contract with Wildstorm but Wildstorm sold the contract to DC. If you trust Wildstorm but you don’t trust DC, then it is a mistake to not have the issue of whether your rights are transferable addressed in the contract. And be aware that all of the terms that you sign and agree to may be contested by your publisher and if you want those conditions enforced you have to go into court to enforce them. If you’re in England and your publisher is in New York, that means jurisdiction is also going to be a key point. If your contract specifies that the rules are subject to the rules of New York State then that means you are going to have to fly to New York for every court date and you should be aware that most court dates consist of about five minutes of the putting forward of a procedural motion to postpone a decision to the next court date—which could be weeks away—and you have basically spent hundreds and hundreds of dollars to fly to New York and stay in a hotel to be there in court for five minutes and then it’s time to go home. It is also worth considering that bankruptcy proceedings take precedence over your contract terms. Your contract is considered a company asset and if the company you signed it with is $300,000 in the hole ten years later you aren’t going to be allowed to do anything with your intellectual property until the bankruptcy proceedings are sorted out and it’s been determined who owns your intellectual property.

It’s very easy—and accurate—to say that we have moved in the direction of mainstream publishing but I think it’s worth pointing out that very little in mainstream publishing would be considered beneficent towards creative talent. Ask any novelist how many of his or her works are in print and available. Now that we have comic books that more resemble novels than pamphlets, structurally, we are starting to see the same net effects which have been irritants in mainstream publishing for years. You can be a household name as a novelist but if the company you are contractually bound to owns the rights to three of your novels and chooses not to keep them in print, those novels for all intents and purposes relative to your livelihood don’t exist. They get snatched up in used bookstores and on eBay—the demand far outstrips the supply—but if your publisher doesn’t see it that way there’s nothing you can do about it. Epic, a division of Marvel, published Bill Sienkiewicz’s Stray Toasters and then Marvel mutated their Epic line and then folded it with the net result that Stray Toasters has been out of print practically from the day it was released. I daresay the same would’ve been the case if I had signed with Epic to do the Cerebus trade paperbacks. It would’ve been seen as a giant step up for me to do so in the 1980s, but all of the material would have been out of print since then. To reiterate, I would rather sell ten copies of High Society a week for the next thirty years than to sell 8,000 copies of High Society over three months in 1986 and then have it go out of print. "Clout" with mainstream publishers usually means a window of opportunity at the point where you’re signing your contract. If you sign for three novels and the first one sells a bunch, the next one not so much and the third one tanks then you are not going to get offered very much—if anything—for your next three novels. By self-publishing, none of my books tanks in that irrevocable way. The Cerebus trade outsells the Melmoth trade by a wide, wide margin but—because they are both my and Ger’s works, both having taken two years and a year respectively to produce—it’s a given that we keep both of them in print. Even if a whole year went by that we didn’t sell a single copy of Melmoth, our conclusion would not be, "Oh, well. That one’s a dog—let’s never print any more of those." No, for us then it’s a matter of, okay we’ll only print 4,000 instead of 6,000 and instead of three-year supply we’ll have a six-year supply. Mainstream publishing companies don’t think that way. By virtue of the amounts of money at stake, they have to be looking for the "next hot thing". And the "next hot thing" could be Neil Gaiman twice or three times. American Gods was THE big book for the season it was released by its publisher and Anansi Boys will be THE big book for the season that it will be released—September 20, 2005 for those of you who want to circle it on your calendar. But to infer from that that getting pre-eminent attention for two successive books means that Neil Gaiman will always be in that category or that that is standard operating procedure for any publisher—they’ve offered you a really good deal for your first three books so they’ll always do so—just isn’t supported by the evidence. Yeah, if you’re 99% certain that you’re the next Neil Gaiman, you would definitely be doing yourself a disservice by self-publishing. You’ll never be able to get hundreds of thousands of copies of your work everywhere in the English-speaking world over the course of 48 hours. But there are a lot more Dave and Gerhards than there are Neil Gaimans in this world. And it seems to me a core element of being a Dave or a Gerhard is that you are better served looking after your own interests than in trying to find someone to sign a contract with who will do that job for you. And most of my advice centers on that. Your work is your work, your own interests are your own interests, and it’s a terrific risk to sign that over contractually if you look at how many things that can go wrong, how many creators who have ended up on the dust-heap of comics history because they were no longer perceived to be "hot" with their work out-of-print and unavailable. I’ve made money off of the first issue of Cerebus every day since December of 1977 and there are very few creative works whose rights have been transferred contractually about which that can be said. Can you name any? Not works that still earn money, but works that still earn money for their creators and in just that uninterrupted a fashion.

One of the reasons (among many) that I’m still engaged in this discussion is that arbitrary aspects keep cropping up. A perfect example is the Cerebus/Flaming Carrot crossover which is part of Church & State Vol. II for which we send Bob Burden a cheque for $800 every time that we do a new printing. The amount is completely arbitrary. We never discussed compensation back in October 1987 through the course of "The Ten Days that Shook Atlanta". My biggest motivation at the time, apart from getting the irreplaceable Bobness of the Carrot into Cerebus, was to excite a work ethic inside of Bob so he’d put Flaming Carrot out more often for the simple reason that I love Flaming Carrot and I want to read more of it more often. Eighteen years later it looks as if he’s finally doing it at Image. Would I prefer that he was self-publishing it? Sure, but I’ll take my Carrot any way I can get him. I don’t even know if we paid him a percentage of what we made on issue 104 where it first appeared. Likewise we always send a cheque for $100 to Rick Veitch for the lettering that he did in Guys. I guess what concerns me is that these payments, as I say, are strictly arbitrary and purely voluntary. I can’t picture Bob Burden giving two thoughts as to whether or not there’s a new printing of Church & State II on the market and there would certainly be no way for him to check apart from checking the indicia whenever he saw one on sale. He just has to accept that when a new edition comes out, he’ll know because he’ll get a cheque in the mail. In terms of creators’ rights both these conditions seem at the very least unprofessional and thus detrimental to the cause of equitable compensation and it is one of those things that I hope could be addressed in the long term—to establish an industry guideline for compensation for work that has been reprinted, broken down by discipline. For example, we don’t send Roxanne Starr a cheque for her lettering on the same story because I consider her the Flaming Carrot letterer and it’s up to Bob to decide how much he’s going to compensate her as the Flaming Carrot letterer. Is that right or wrong? Not "legal or illegal" but is that "ethical or unethical"? And I use the term guideline because I think that’s more useful than trying to come up with an industry standard. The guideline could say that Bob should be getting $400 or it could say he should be getting $1500 and we might stick with the $800 but at least we would have an idea relative to the environment of whether we’re over-paying him or under-paying him. It seems to me that the fact that these forms of compensation are all hidden from view and—so far as I know at DC and Marvel, anyway—are still in the category of pure largesse, noblesse oblige and nowhere carved in stone. If everyone is getting the same compensation then I think we could say that we’re made real progress. If the executives at DC are just pulling dollar amounts out of a hat and cutting cheques for those amounts based on who is the fair-haired boy of the moment and cutting smaller cheques for the problem children then, forgive me, no I wouldn’t say we had made real progress.

Okay, this is assuming Bissettian Proportions so let me finish with a Bissettianism: "Just one more thing and then I’ll let you go."

Given that we’re all going to be cautious about tipping out hands to each other, let me finish with a question for Gary: is there any way that you could envision coming up with a baseline contract with minimum inviolate terms to benefit the creators and minimum inviolate terms to benefit publishers? I ask this because I think it’s going to work if we’re drilling both sides of the tunnel simultaneously. On the creators’ side I think it is worthwhile to have an exhaustive list of everything that a comic-book story can become and if that becomes a baseline negotiating tool on the creators’ side—if there’s anything on this list that you don’t want to negotiate away when you sign your contract then you better make sure that it’s mentioned specifically because the specific terms are what a judge is going to look at if your contract ever becomes the center of a dispute—then I think it’s only fair to indicate that that’s where we’re drilling from this side of the tunnel so that as a publisher you can be drilling from your own side of the tunnel and maybe we can find some points of agreement before we’re too far along in the process. And I’m happy to declare that my own vested interest is in seeing the direct market and its participants arrive at some sort of overall guideline governing all aspects of the inherent properties in a creative work so that when the process is all said and done, I’ll know roughly what I should be paying Bob Burden every time we reprint Church & State Vol. II, while acknowledging that everyone is free to opt in or opt out of those guidelines. After all, this was the same debate that dominated the collecting side of the business for the first ten years after the Overstreet Price Guide was first published. The prices were guidelines, but the more those guidelines were refined and sharpened in response to feedback from those involved, the more those prices became carved in stone and only the rare exception would price his or her books based on another yardstick. Obviously, I hope the same thing can happen here, starting as a pure intellectual and academic exercise on the part of a handful of interested participants and leading ultimately to a Manifesto of legal implications and legal inferences—inherent and indissoluble properties—which come into existence at the exact moment that a pile of comic-book pages become The Work.

Stephen R. Bissette

I think that the back-and-forth between Steve and Gary should probably be viewed in light of the historical context from which we have emerged, as Steve alludes to the pre-Internet reality where the Comics Journal was the only journalistic venue which was likely to discuss the hard issues of the day. This is a recurrent claim on Gary’s part and it is definitely valid. There is also a certain validity to Steve’s charge that Gary and the Journal didn’t do in-depth coverage of every dispute and potential scandal of which they became aware and that at least two of those were situations that Steve thought warranted "better-than-zero" coverage. This is a judgement call as well and it was Gary’s to make. Newswatch expanded over the years and covers a lot more bases today than it did when it was first inaugurated, many of them with a greater depth that any comparable coverage in the field. I think we are all grateful to Gary and Kim for the fact that the Journal filled that role when there were no alternatives and we all acknowledge that there was no way that they could cover everything. Steve and Rick and I are pretty much in agreement that when you publish comic books and publish a magazine devoted to news and criticism of comic books as well, there is an implicit conflict-of-interest if what we are discussing is the absolutist definitions of journalistic integrity. In one sense or another anytime that the Journal runs a Newswatch piece on Drawn & Quarterly there is the central fact that in most people’s minds Fantagraphics and Drawn & Quarterly are viewed as direct competitors. When the New York Times does an expose on the Pentagon one of the tenets of what it views as its mandate is that there is no implied conflict of interest. The same couldn’t be said if the Times did a major expose on the New York Post (a geographical competitor) or the Washington Post (a competitor of comparable perceived stature). When Newswatch does a reasonably large piece on Drawn & Quarterly’s then-current but not widely known business woes (or, more accurately, "business woes") and speculates about its future viability, well, you know, I’m smiling while I’m reading it. Both for the disingenuous presentation of the piece as a dispassionate and uninvolved documentation of a current newsworthy event in the field and for the journalistic artistry with which it edges carefully around the questions of whether Chris Oliveiros (metaphorically) still beats his wife while introducing the concept for the readers’ benefit out of thin air. Gary can get as indignant as he wants at me smiling about that, I’m still going to be smiling about that while I’m reading it.

And I do agree with Steve that it’s probably best to leave these tangentially-related issues at the door when the venue has been created for the express purpose of revisiting the Creator Bill of Rights. We all have our deeply held and very strong opinions about each other and we all have a long history of scoring brownie points where and when we can and, we’ve all taken a bit of a run at each other here in the early going just as we’re settling in—battering each other like piñatas is just our way of saying ‘Hello, there"—to one extent or another, we’re all still here. Apart from answering the five questions a month for the Cerebus readers at the newsgroup/mailing list, this is my only regular participation on the Internet. Nothing else has struck me as being as worthwhile as this participation and it seems to me that Steve’s reaction is pretty much the same considering that he’s been completely Internet-mute for a number of years. And I also think Gary would have to admit to a level of interest on his own part here since these are the longest blocks of text I’ve read of his in some period of time.

I guess my only criticism of Gary’s participation so far is that he seems to be being non-specific about his objections to the Bill specifically apart from just vaguely asserting that it’s been overtaken by events. Could he perhaps provide us with a short list of those details that he and his young cartoonists have negotiated which have helped them, in his view, to maintain their integrity? And conversely, what elements of the Fantagraphics contract needed to be modified to allow these "exceptions to the rule" to maintain a greater level of integrity than those cartoonists who didn’t ask for those elements to be changed?

Al Nickerson

Al thanks again for staging this somewhat-rowdier-than-you-expected house party. A little tonic water will help get those blood spatters out of the white cushions on your sofa and I’m going to insist that you let Gary and I pay for the lamp.

In answer to your phone message that Joe Quesada expressed interest in participating here and answering any questions that we might have, I’m not sure that I would have any questions in particular for him. If you could forward my above "Gary Groth" section to him and ask if he sees anywhere that he could envision participating or any suggestions he might have, I think it would certainly be valuable. The fact that he started as a freelancer, he is an artist and he is also the editor-in-chief at Marvel—in that Jim Shooter borderland between the editorial and the executive—would indicate to me that he would probably have a great deal of value to say in any one of those capacities. He might want to divide his responses into "Speaking on behalf of Marvel" and "Speaking purely for myself" since this does get into dicey areas of policy and I would assume that if he was to try to clear things through the executive level their very natural response would be that it would probably be best if he didn’t say anything. I think they have a great deal to gain from participating in these discussions of overlapping jurisdiction but only in the long-term and most corporations don’t look at outside participation as a long-term proposition. In a general sense I guess I would be interested in whether Joe sees any merit in my pursuing a baseline definition of what inherent properties intellectual properties have so as to give everyone a comparable set of terms upon which to negotiate and likewise if he sees any merit in establishing industry-wide guidelines as to what constitutes ethical compensation for reprint material broken down by discipline.

Next: A Letter(s) from Steve Bissette 4 Steve Bissette responds to Dave Sim and Gary Groth's letters and online posts concerning creator's rights.