Get What You Give (Rights and Revenue for Creators)

By Gamal Hennessy

A contract is basically an agreement between one or more groups for the exchange of resources. The exchange could be time and skill for money, goods for services, property for future gains or any combination of those things. The best agreements exchange roughly equal resources. The worst ones have one side trading large amounts of resources for little or nothing in return.

This is the problem that artists run into with many of the contracts that I see. The most important service I provide is showing my clients what they are giving up in comparison to what they are getting. I’d like to provide an overview of the different types of rights and revenue streams as a general overview for creators looking to get their projects into the market.

Types of Rights

As discussed before, copyright law gives the creator of an original work the right to benefit from the distribution of that work. There are various types of ways currently available for creators to exploit their work, especially when we consider comics. Some of the major distribution methods include:

• Publishing (Print, novelization and Digital)
• Public Display (gallery displays and public performances of some of the methods listed here)
• Theatrical (Movies whether live action or animated)
• Television (including network, basic cable, premium cable, PPV whether live action or animated)
• Home Video (including DVD, Blu-Ray, etc.)
• Live Performance (including Broadway performances and theme park performances)
• Interactive (including console computer or mobile video games)
• Merchandise (as discussed in last week’s post)
• Audio (soundtracks and audio novelizations)

As new forms of distribution are created, new rights are created for the artists. These rights are universal, but they can be divided or carved out by geographic area, time frame, distribution channel, language and other factors. (This division can be complicated, so I’m going to save that for another post)

Types of revenue

Just as there are different rights that creators can use to get their work into the market, there are various ways that they can be paid. Creators need to focus on three ideas:

• A royalty is a percentage that the artist earns for every finished unit that is sold. For example, an artist might receive 30% of every one of their comics that is sold to the public.
• An advance is paid before the work is finished. For example, a writer of a novel might receive money up for her novel based on the proposal not the finished product.
• A minimum guarantee (MG) is money paid up before the work is finished, based on anticipated sales. For example, if a toy company plans to sell a new licensed toy for $10 and the creator gets 10% of that sale, then the creator gets $1 per unit sold. If the company expects to sell 100,000 units, then the MG that the artist gets for this deal is $100,000.

These are broad revenue concepts. They are often altered and refined by concepts like gross, net, recoupment, offsets and other variables. (This is another complicated subject that I can talk about later.)

Choices that Artists Must Make

In certain creative circles, the types and amounts of revenue are fairly straight forward. Writers for some mediums often get an advance. A work for hire artist for comics often gets a page rate. There is more confusion for creators pursuing creator owned deals. There is often no advance, no MG and a blanket royalty rate for all forms of distribution. This puts them creators in a dangerous position since the lack of up front money and the uncertainty of any profitable sales in the future means that the creators are really working on spec while at the same time giving up all their rights to their property.

From the publisher’s perspective, it is understandable why they would take this stance in their contracts. Publishers protect themselves from risk by limiting exposure to projects that might not be financially viable. At the same time, they maximize their potential gain by securing as many rights as possible for projects that are financially viable. Artists need learn the same lesson. They need to counter the publisher’s position by attempting to limit the rights that a publisher gets for projects that are financially viable and maximizing revenue for every project they do.

I know negotiating power is often limited for artists. But having a clear understanding of the relationship between revenue and rights and clear goal of where they want to go can help maximize their limited negotiating power and increase their chances of success.

Best

Gamal

PLEASE NOTE: THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. IF YOU HAVE A LICENSEING OR INTELLECTUAL PROPERTY ISSUE, DISCUSS IT WITH YOUR LEGAL ADVISOR OR CONTACT C3 AT gamalhennessy@gmail.com FOR A FREE CONSULTATION.

Making Comics Isn’t Really About Making Comics Anymore (Comics, Movies and Merchandise)

by Gamal Hennessy

Last week I talked about the difference between copyright and trademark. I wanted to explain that first so that this post would make more sense. The development of comic book properties as major licensing programs has implications on the way comics will be produced going forward. It will also impact the way creators should look at their properties and their creator owned contracts.

The list of mainstream cross over comic book properties is familiar to everyone in the industry. The list includes the X-Men, Batman, Fantastic Four, Spider-Man, Green Lantern, the Avengers, and Superman. It will soon include Guardians of the Galaxy and maybe even Ant Man and the Justice League.  Everyone in the industry is aware that there is more potential for explosive success now than any other period in the industry. What does this mean for comic creators? What do you need to do if you want to thrive in this new golden age?

Comics as an Independent Business

There was once a point where the comic book business was purely about selling physical print copies of single issue comics. When I was a kid (back before TV had remote controls and everyone rode in a horse drawn carriage) a comic book was $.25 and it had very little competition in terms of entertainment. There was no cable TV, no cell phones, no home video game systems, no DVD’s and no internet.  People read comics because there was little else to do. As little as 15 years ago, the top 300 comics sold 6.64 million units. Very little money that the comics industry makes actually comes from selling comics. Monthly sales figures have risen in recent months, but the revenue from this activity is dwarfed by the “ancillary market.”

Comics as a Mainstream Springboard

Several factors helped comics evolve out of a purely print model to a more integrated business. The most significant factor is the jump to movies. When direct market comic book shops became an economic liability to publishers, there was a move to gain more access to major bookstores. This led to a higher volume of graphic novels (because a GN could survive on the shelf of a bookstore where a flimsy comic couldn’t). Works in this medium, most notably the Dark Knight Returns helped spark interest in Hollywood to create a major motion picture in 1989 with Batman. That began a push for more films based on comics. Now the summer movie schedule has 2-4 comic movie releases almost every year. Major comic book conventions that used to focus on buying rare comics and meeting artists are now more about upcoming film trailers and meeting actors. As of this month eight of the top 25 grossing films of all time are based on comic books. Comic properties have clearly developed from an insular type of entertainment to widespread popularity.

The Secondary Market

Comic based properties can generate money in several ways when they are associated with a movie. A film creates a retail environment where there is a higher demand for licensed merchandise.  Merchandise is a broad concept here that covers everything from clothing to household items to food to games and many other consumer articles. Depending on the film, the merchandise deals can generate more money than the movie itself. When I was with Marvel in 2002, I worked on the licensing program for the Hulk. The film made two hundred and forty five million. By comparison, the licensing program made more than one billion dollars. A single issue of the Hulk comic in 2012 comes in a distant third generating less than $184,000.

Your Comic in the World Beyond Comics

As film, television and video game producers look for new properties with strong stories and an established audience they will continue to look to comics for inspiration and opportunity. It is not just DC and Marvel capitalizing on this trend. Since the mid 80’s, independent comic properties like Teenage Mutant Ninja Turtles, 300, Spirit, Spawn, Hellboy, Scott Pilgrim and Kick Ass have all found producers willing to transfer the stories from the page to the screen. Comic creators need to be aware that the potential for a wide market is possible for any property. It is true that the vast majority of comics will not get big screen exposure but it is prudent to consider the life of your property beyond the comic when you are considering a deal with a publisher. This means not agreeing to contract terms that do not compensate you for exposure of your property in the world beyond comics.

I am aware that the main focus of fledgling creators is getting their work out there and closing a deal with a publisher. I know that many creators do not have a great deal of negotiating power in their dealings with large publishers. But as the owner of a potentially profitable property, you need to weigh the benefit of short term exposure and financial gain with the potential for film, TV and merchandise revenue. You will be able to make a prudent decision about your property once you take all the factors into account.

Best

Gamal

PLEASE NOTE: THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. IF YOU HAVE A LICENSEING OR INTELLECTUAL PROPERTY ISSUE, DISCUSS IT WITH YOUR LEGAL ADVISOR OR CONTACT C3 atgamalhennessy@gmail.com FOR A FREE CONSULTATION.

Image and Story (The Role of Copyright and Trademark in Comics)

By Gamal Hennessy

The storytelling method of comics primarily involves using images to tell a story. The writer and artist (and others) work together to create narrative sequential art. In a business and legal context there are two legal creations formed with every comic; a copyright and a trademark. Knowing the difference between the two and their complimentary roles will help you grow your business and might help improve your stories.

Definition and Examples

Before we talk about the relationship between copyrights and trademarks, it would help to define what we are talking about.

Basically, a copyright (normally represented in the US with the symbol © ) is the intellectual property right that gives the creator of an original work the ability to control how that work is used. In its most basic form a copyright gives the owner the right to make a copy, but it also governs who can use or exploit the work for any type of gain.

By contrast, a trademark (normally represented in the US with the symbols TM or ®) is a symbol or word used to identify a particular individual, organization, product or service in a commercial context.

The easiest way to show the difference between the two is with an example. Let’s say someone (we’ll call him Bob) writes a story about a boy whose parents are killed right in front of him on the way home from the theater. This boy grows up obsessed with fighting crime and making criminals feel the same fear he felt in that alley. He takes a secret identity and creates a persona modeled after an animal associated with the night (just for the sake of the example, let’s say this guy decides to use a bat). He creates a series of tools that utilize his symbolic totem. While many people see this mysterious man as a vigilante and a criminal, he becomes the one thing that keeps the city from descending into chaos.

Perhaps the story is a little far fetched, but as an example it works very well. There is a copyright created for every story of the masked crime fighter. The images associated with him and his story becomes trademarks.

Relationship between © and ®

When your stories create a strong emotional connection with the readers, many of them will choose to associate themselves with your creation. In modern societies, that association is expressed in material goods, especially with younger audiences. The reason that licensing and merchandise programs are tied to film and television releases is because the owners of the intellectual property are attempting to profit from the emotional creation that their stories create. In many cases, the licensing program for a character can generate far more revenue than the actual stories, if only because the potential number of merchandise products is far greater than the media outlets and they can be accessed at a far lower cost. But there will not be any demand to create merchandise if there isn’t a strong story creating a meaningful connection.

Legal and Business Impact

When a comic creator is trying to get their stories published, many of them are focusing exclusively on the terms and conditions for the actual publishing rights. Very few of them take into account the potential impact of the secondary media and merchandising rights. This makes a certain amount of sense, since very few comics ever produce a meaningful merchandise program.

The result of this lack of focus often creates a situation where a creator gives away most or all of the trademark rights to their story to a publisher that may not have any ability to exploit them properly. Even worse, the publisher may have a significant licensing program that excludes the creator from any future profits. It is beneficial for creators to protect their potential trademarks with the same diligence that they protect the copyright to the underlying story.

Impact on Story Development

Early in the development of comics, it might have been accidental that so many characters have distinctive symbols prominently displayed on their chests. It might have been pure coincidence that every item or tool that they used related back to an image that could easily be affixed to a wide array of products. But creators can be more deliberate now. The development of a story with a strong image system could improve licensing potential of a creator owned property down the line. I’m not suggesting that you compromise your art by forcing a logo where it makes no logical sense in your narrative. But there is a commercial reason why so many heroes have a symbol on their chests. It helps to sell T-shirts later.

Have fun.

Gamal

PLEASE NOTE: THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. IF YOU HAVE A LICENSEING OR INTELLECTUAL PROPERTY ISSUE, DISCUSS IT WITH YOUR LEGAL ADVISOR OR CONTACT C3 at gamalhennessy@gmail.com FOR A FREE CONSULTATION.