This week, I’ve been using Dave Chappelle’s Unforgiven performance to highlight the need for understanding creative contracts. Today, I’d like to close out the discussion by looking at the concept of assignment.

Words in the legal world have different meanings than words in the real world. For example, most people define an assignment as a task, duty, or responsibility given by one person to another person. In the world of contracts, an assignment is the transfer of contractual rights and obligations from one party to another party. In most contracts, references to assignments are buried deep in the back of the agreement when your eyes are already glazed over and skipping anything that doesn’t look like the signature line. But certain assignment language can turn a good deal into a bad one right before your eyes.

Musical Chairs

Imagine yourself as someone who makes comics. Also, imagine yourself working hard to get your name out there at cons and online. You meet a small publisher and the two of you hit it off. He loves your work and offers you a deal. It’s not a great deal because it’s your first self-published project, but you take it anyway. Your book comes out and you’re as proud as a newborn parent.

Your publisher treats you like gold. He goes beyond the language in the contract to support and promote your book. He reports sales on time and he even pays you. Your book and the other titles in his catalog start to get a lot of buzz. Hollywood starts knocking on the door. Suddenly, people are talking about TV, video games, and even movies. Your publisher gets an offer for the entire company and he takes it. Now instead of being published by a small visionary publishing company, your book is swallowed up by a big vertically integrated conglomerate.

Your new publisher does not treat you like gold. Your contact at the central office has no idea who you are and isn’t interested in finding out. Your book is buried in an avalanche of content. The money stops. Your book becomes inventory for other media, but it is constantly pushed aside for higher-profile properties. Your entire relationship with them is defined by the original unfair agreement and you want to take your book elsewhere.

That’s when you read the assignment clause of your contract and realize there’s a problem.

Types and Options

Assignment clauses boil down into two types; mutual and non-mutual.

• In a mutual assignment, you or your publisher could assign your rights in the contract to someone else at a later date or neither of you can ever assign your rights to anyone.

• In a non-mutual type of assignment, only one of you has the right of assignment and the other side is stuck.

Publishers have a vested interest in being able to assign contracts. Their ability to sell their company is based in part on what is in the catalog. A company won’t be worth much if every title can walk out the door after a sale. Because of this and the inherent negotiating imbalance, most artists have many artists are not in a position to get a non-mutual assignment clause that goes their way. Many of them can’t even get a mutual assignment clause. Quite a few of them are stuck in a bad position.

This is what happened to Chappelle. His original deal was with Comedy Central, which is owned by Warner Brothers. But when AT&T bought Warner, Chappelle Show found its way to HBO Max and Netflix. Chappelle (because of other clauses in the contract) didn’t have any say in this decision and he didn’t get any money from the lucrative licensing deal.

Your Mission, If You Choose To Accept It…

The rights to catalogs change hands more often than you might think. Aspen Comics recently acquired the rights to Big Dog Ink. A few years back, DC acquired Wildstorm and integrated that entire universe into the New 52. In what is perhaps the largest catalog acquisition in recent memory, Disney bought Marvel, Pixar, and Star Wars. As comic properties become more lucrative more publishers will see value in having catalogs they can assign.

Your response to this situation is threefold:

• Understand what kind of assignment clause you are dealing with and what options you have to walk away from a new publisher in the event of a sale

• Negotiate for the best overall contract you can get upfront

• Understand your long-term success will be based on the language in your contract as much as, if not more than, your relationship with the publisher.

In Chappelle’s case, it worked out in the end. Because he has more leverage with Netflix (see my earlier post on leverage) he could get Chappelle Show taken off the streaming service. You might now be as fortunate. Time alters circumstances and relationships. While you can’t see into the future or account for every eventuality, the more you understand about contracts before you sign them, the less you’ll regret the contracts you sign.

Have fun with your comic.

If you have questions about the business or legal aspects of your comic book publishing and you'd like a free consultation, please contact me and we can set something up that fits in with your schedule.

PLEASE NOTE: THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. IF YOU HAVE AN ISSUE WITH YOUR COMIC PROPERTY, DISCUSS IT WITH A QUALIFIED CONTRACT ATTORNEY OR CONTACT C3 FOR A FREE CONSULTATION