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Bryan Lee O’Malley and the case of the TokyoPop Pilot Pandemonium

Bryan Lee O’Malley has recently posted a number of objections regarding TokyoPop’s default contract for their new Manga Pilot Program.

Firstly the obligatory disclosure that I have a gigantic man-crush on Bryan. Anyone who has ever worked at The Beguiling is automatically cooler than me, but come on – “Lost at Sea”, “Hopeless Savages”, “Scott Pilgrim”!? I have lost this battle already. So I actually was going to limit my comment on this issue to an e-mail to him directly. But since a lot of other people have started commenting on his original post, especially creators I have huge respect for

[Edit – I owe Lea an apology as this whole kerfuffle started with her post, I mis-read the timing of the posts .. worse – I mis-spelled her name (which she was too polite to point out). How bush league is that?]

(Lea Hernandez, Kris Straub, I’m looking at you) I felt it was important to get some kind of contrarian opinion out there for anyone who might be Googling.

So please take what I have to say from a place of deep respect for some of my favourite creators out there: There are bad screwjob contracts out there. TokyoPop may have a record of bad Original Property Agreements (of which I can’t comment, having never seen one, or heard anything about one, ever) [Edit – No, their record is pretty bad. See my amended take at the bottom]. However as someone with no particular tie to TokyoPop whatsoever (other than devoting a copious amount of my bookshelf to Shojo titles which-shall-not-be-named) this particular agreement is not one of them.

I absolutely agree that this program may not be right for everyone – and creators need to be really clear on any contracts they agree to. This program will pay you a small fee upright to make a 6-24 page “pilot” – with no guarantees on either side that TP will ever do another project with you (or you them) – but this contract is a damn sight better than what you’d get from Platinum Studios, or DC’s or any of the other “contest farms” that have been cropping up. It let’s both parties walk away with the creators rights intact, and in no way limits what a creator can do with their creation and the intellectual property therein if TokyoPop doesn’t want to proceed.

Even worse, some of the points Bryan rails about in his post are clauses that are actually protecting the creator – removing them from the contract would make the deal markedly worse for them (not better).

I just want to try to do a really point-by-point rebuttal to some of the issues raised in Bryan’s original post:

Pilot Fee $____, payable in full when we receive and accept the Manga Pilot

That’s a conspicuous blank. I’m not aware of just what they’re offering. Are they asking you to put up your own number?

This is the one point where we agree. If TP is going to post this as a “contest” program – I think they should attach a number to it. Although there’s tonnes of boiler plate out there that chooses to keep financial details secret until actual negotiations. It wouldn’t be my choice but I can see why both the publisher (and the creators) may prefer it that way (especially if TP has no idea of the quality that the contest may generate). Edit – I’ve heard $750 bandied about in various comments threads… which, frankly, is pretty fair for a promotional piece you can walk away with full rights to at the end of the day. Sure the page-rate is weak, but since I encourage writers and filmmakers to do as much free work as they can without starving to death it’s not a crime.

So, hey, what does accept mean? Does it mean that they might not accept your story, the one you slaved over for weeks or months, and then they’ll be well within their rights to never pay you? Yes. Yes it does.

I certainly can’t speak for Bryan, or his past agreements – but I’ve personally never signed a creative agreement with any writer or artist where I don’t have the ability to say “this is not good enough” or “this is not the work I hired you to do”. I can maybe think of one exception with an established creator with a track record… a very, very, big track record – but that’s not what the program here is for right? It’s trying to encourage new talent. Look, 99% of creators are stand up girls and guys who work their guts out on everything they do… but there’s always that 1% who will fart around for months on a deadline and then try and pull something out at the last minute that’s just not acceptable (or alternately, do something entirely different than what you hired them for).

It’s not fair to those who will be looking to pursue careers in fields which may involve freelance work to think that’s unusual. It’s not. I have friends who are advertising designers, fine artists, commercial photographers, webmasters, television directors, film producers, and copywriters and part of the “sucks” of this type of work is the client always has the right to just outright reject what you do and not pay you for it. The important thing is that when that happens you keep the rights to that work, so you can revise it, repurpose it, or resell it… depending on the merits of the work – not the taste of your clients.

If we haven’t given you a thumbs up — our written notice of our approval — of the Manga Pilot within 30 days after we’ve received it from you, then you can consider the Manga Pilot rejected.

They don’t even have to tell you they don’t like you. Isn’t that sad? Waiting by the phone for the horrible corporation, and they never call…

This is one of those clauses that are absolutely to the benefit of the creator – but maybe loses a little in the “down home folksy language” translation.

The worst thing in any creative business is not when when a publisher/producer rejects your work – but when they tie up your work indefinitely – not either commissioning more work, nor cutting the creator loose to try and sell it to other venues. In film (because it takes so long to develop and produce) we often have to option scripts for upwards of six years where the creator is not getting paid (or paid very little) but can’t do anything else with their script. In this case TokyoPop is putting *themselves* on a clock to “shit or get off the pot” as it were… which I’d consider a *big* plus as a creator.

[Edit – there is a period of up to a year where you have limited rights to re-exploit your project (presumably because it takes TP that long to get through all their various distribution channels) but I’d consider anything shy of three years exclusivity a win for the creator given the standards I’m used to seeing]

You promise to protect us from claims anyone makes that you violated their rights in connection with your Project or Manga Pilot. This means you’ll pay for all the lawyers to fight it out and all the other costs necessary to fend off those claims, in or out of court.
And, if things do get ugly and end up going to court, this means you’ll also pay for all the expert witnesses and court costs and, if the other guy or gal wins, you’ll pay whatever the court awards them, too.

This almost speaks for itself, but maybe a little example would make it clearer. Say, maybe, your comic becomes a huge success. You get movies and toys based on your characters. You might even start making some money. THEN someone comes forward and sues your ass for stealing your idea from him back in the sixth grade. You know, one of those multi-million dollar lawsuits.

Again, I make no allusions to anyone else’s hypothetical deal in the comics industry, but I’d be willing to bet a lot of plates of tacos at Sneeky Dee’s every comics creator working today has signed this exact same waiver at some point (self-publishers assume that liability automatically). Anytime a creator is paid to create “original material” a publisher will need them to warrant that *this specific work* isn’t infringing on someone elses copyright. They have no idea if you’ve stolen a plot from a book, or ripped off a character design from the Internet, or even paid someone else to do all the work for you (it happens) and that person has stolen a plot from a book…

The only way a publisher can do the deals *they* need to do (to promise to others that there’s nothing iillegal about the work) is to show a legal “chain” that everyone at every stage has promised they’re not ripping anything off at their particular stage.

Since any publisher or distributor is assuredly going to be named in any court case, they’re going to have to defend themselves (and show the chain in the work, of which this agreement would be a part), the only way a creator is going to be stuck “holding the bag” is if they *did* rip off someone else for your work, in which case they’ve got bigger problems than the publisher coming after them to recoup their damages in court.

We may feel it’s important to test a second installment of your story, so you give us the right to ask you to do a second Manga Pilot based on the Property. If we want you to do a second Manga Pilot, we’ll let you know within six (6) months after you’ve given us the completed first Manga Pilot and we’ve accepted it.

If they need you to do some more free work, you know, they’ll ask. And you’ll get paid the same way – AFTER you do all the work (again) and they approve it, after sending it back and forth for however many rounds of FREE changes and revisions they need.

Here I don’t actually read this clause the same as Bryan, my understanding would be that TP has the option to commission another pilot (at the same or greater rate than the original). What they’re just saying is that it’s one possible outcome of the process (ie: they’re not just limited to “release you” or “offer you a full contract”). Again this comes back to the core discussion of “is what they’re paying you for for each promo worth the exposure you’re getting in return? If so a second go-round isn’t going to decrease the value of the deal.

You give us the right to reformat, adapt, and modify the Manga Pilot for iManga, our motion graphics video format, as well as for other ways that we may change it in order to display, print, and exhibit it.

Just so we’re all clear: If they’re making money on any of these things – and believe me, they will be – you aren’t getting any of that money. Pay attention, kids.

Given that this clause seems limited to print (or any new-media jiggery-pokery which one could argue involves “displaying”, “print” or “exhibit”) in general (and their iManga service specifically) I don’t see the issue. This comes down to whether or not an individual creator thinks the exposure for one single 6-24 page promotional work plus the flat fee is worth the time and effort to make it. If so, again, allowing TP to adapt it to their other service(s) and widen the audience is a plus.

What’s important is that the wording in this would exclude any broader adaptation rights (the concept, the designs, the character names adapting it for television, radio, movies, video-games)… basically the kind of “old switcheroo” that worked so well for Platinum in the 80s and 90s.

“Moral rights” is a fancy term (the French thought it up) that basically has to do with having your name attached to your creation (your credit!) and the right to approve or disapprove certain changes to your creation. Of course, we want you to get credit for your creation, and we want to work with you in case there are changes, but we want to do so under the terms in this pact instead of under fancy French idea. So, in order for us to adapt the Manga Pilot for different media, and to determine how we should include your credit in tough situations, you agree to give up any “moral rights” you might have.

Of course, you still have your rights under this pact to your credit.

This one needed to be quoted in full. First of all: hey, everyone hates French people! Tokyopop couldn’t possibly be as bad as the French! What is this? What the hell? Is this real?

This is one case where the “folksy” language obscures a very tricky legal issue in North America. The armchair version is that there is a concept called “Droit Moral” (Moral Rights) in French International law that is almost entirely incompatible with North American copyright law – and allows creators under certain situations to completely block or shut down the release of their work. Even if they’ve agreed to it previously. If a company works internationally they almost always need these rights specifically waived to limit claims to their local definitions of “copyright” because otherwise these laws can be (under some circumstances) boiled down to “other people can’t do anything with an artists creation ever if the artist later decides they don’t want to let them”. This (understandably) creates a chilling effect on a publishers ability to do business in the EU, or with any company which does business in the EU.

It’s not fair to tar TP with this brush, as it’s been in most International contracts I’ve ever drafted in my career, or that I’ve seen, be it in print, journalism, literature, art, for hair-stylists, camera assistants, actors, house-painters… anyone I’ve ever engaged on a film, television program, play, internet series… if it has anything to do with Europe (or there’s a hint that it may be sold or displayed anywhere in the EU, or may come in contact with a company which works in the EU) that clause has to be in there. And it’s been signed by each and every one of them (including oscar-award winning actors and directors with oscar-award winning law-teams).

There’s a lot you can blame on corporate avarice – but until the International courts find a way to reconcile two law systems that just have completely different ways of approaching a metaphorical concept like “copyright”… I don’t think you can this in that camp.

[Edit – Just for clarification “Moral Rights” are not synonymous with Work-For-Hire contracts. All Work-For-Hire contracts will require the creator waive their moral rights, but not all contracts which require waiving moral rights are “Work-For-Hire”. In this case since the creators keep all the rights to their creations in perpituity, I think this is actually the exact opposite of a WFH contract.]

And, speaking of your credit, customarily we give you credit for your work as the writer and/or artist of the Manga Pilot. However, we may have to shorten or leave out your credit when the space available or the conventions of a format won’t permit it or if it would have to be too small to read (for example, when the Manga Pilot is viewed on mobile phones). You’re OK with this.

This is even worse! “We don’t have to put your name on your comic if we don’t feel like it.” Okay? That’s what it says. I’ve seen this. Tokyopop ads that don’t specify creators. You know, all their comics come from the same hive mind. All their creators are replaceable cogs in a giant machine.

This is another case where the clause is actually more generous than I’d suspected.
The specific exception that credit can be omitted if it’s just technically not possible, is understandable.

I’m also surprised (and think it might be an oversight) that inadvertently omitting a credit in other circumstances is not a breach of contract.

That latter is standard in pretty much all contracts ever, since the publisher doesn’t ever want to be in breach of contract for a printing error or mistake or typo by some party that they have no direct control over.

Bryan brings up ads which I can’t really say anything about – (although I seem to think that most of the TokyoPop ad’s I’ve ever seen do clearly credit their creators… I don’t have a digest handy to check).

If you and we agree on the terms, we’ll send you a formal contract (it’s called an Original Property Agreement) that will include a schedule for you to create the first manga book or online manga based on the Project. You’ll have an opportunity to give us your comments to the Original Property Agreement and, if you want, have professional advisors (like an attorney) review and comment on it, too.

If you want, you could have a lawyer look at the contract. Inadvisable, ’cause if a lawyer looked at it and you listened to the lawyer, Tokyopop would be out one manga-creating cog in the machine. Also note how it doesn’t say that you or your lawyer could suggest changes and have those changes made. You’d just “comment”.

This is just non-familiarity with legal terminology (and a breakdown of the “english” translation). This clause absolutely gives the creators power to re-negotiate their long-form agreements, which should be considered a major coup for creator rights.

This clause is confirming that anything a creator agrees to in the pilot program does not carry over to their OPA. This is a good thing. They get to negotiate a completely new contract, with completely new terms, and can have whoever they want (a lawyer, agent, mother, me) negotiate it on their behalf.

These are the specific types of clauses that upcoming creators should be fighting FOR… not scared of. Because if the work is good, and TP loves it, then the power is in their hands to get the best terms possible for the work going forward. Where it’s a problem is when negotiating these agreements for “promo works” one is also tying up their ability to make money or profit off their future work, or locking into to “slave wages” for years to come – which is absolutely not the case here.

Now, as I mentioned above, I have no idea what TokyoPop’s standard OPA terms are like. They could be horrendous… TokyoPops standard OPA terms seem to be horrendous – but they’re certainly not locking creators into anything here through this program.

If you and we can’t agree on the terms or if we’ve agreed on terms but haven’t signed the Original Property Agreement by the end of the Exclusive Period, then we’ll have the right to match any offer you receive from anyone else for any rights in the Project. That means that if you receive an offer that you’d be willing to accept, you’ll have to tell us right away what the terms of that offer are, and we’ll then have two weeks to decide whether we want to match that offer.

If you walk away from Tokyopop, having signed this first “pact” but not entered into a full book deal with them, and then a better publisher makes you a sensible offer, you have to tell Tokyopop. Then, Tokyopop has the right to make an about-face and give you the same deal.

This is another one which is a much bigger issue than I want to get into, but I’ll limit it to the fact such a case would not necessarily be a bad thing for creators. It can encourage companies to get into a bidding war with each other to keep “sweetening the deal” until one party drops out. In the biz, this is called “the best thing ever”.

Plus, at the end of the day, if you really don’t want to work for a specific company (or another publisher is hesitant to make an offer given this clause) it’s relatively easy to structure an offer in a special way that TokyoPop (or whoever) can’t possibly match the specifics of the offer you’re given [edit – Just because people asked – for example make the key clause of the agreement that the publisher of company B (or an artist they’re on good terms with) write the introduction to the book, or that it be initially released in a country where TP doesn’t do business… etc]

But seriously, go for the bidding war.

Once the Exclusive Period ends and even if you and we haven’t entered into an Original Property Agreement, we’ll still have the worldwide right, continuing forever, to publish the Manga Pilot on a non-exclusive basis.

If you realize that this means Tokyopop can continue making money from different versions of your 24-36 page comic (books, magazines, ipods, online advertising, whatever), while giving you 0% of that money, congratulations. You’re correct.

Again – I may be drinking the Kool-Aid, but this is a good thing for creators. Yes TokyoPop keeps the right to keep publishing your pilot in perpetuity (they did pay for it… it’s essentially a commissioned work) but, to me amazingly, they give you back the right to publish it yourself – or let others publish it as well. So if you go off and self-publish an ongoing series based on your pilot you can include the pilot material as well in your collections, or art-books, or t-shirts… or whatever.

How is this not a good thing? Because let’s face it… if the pilot episode(s) are selling like gangbusters and TokyoPop is plastering them across the web – the real value for a creator is in how they exploit the series… not how many times you can sell the first 24-page “teaser”. Essentially TokyoPop would be doing your advertising for you, for free.

A lot of contracts prohibit you from discussing the terms of the contract (or even the fact that you signed one) and limit your right to publicly talk about your Project. We don’t have that kind of provision in this pact. We want you to talk up the Project, the Manga Pilot, and what you and we are doing together. We think shameless self-promotion is great.

They think shameless everything is great.

I shudder to think about how many hundreds of creators have been fleeced over the years because their contracts had very strict language to prevent them from discussing ANY of the terms of their agreement. This is something I’d consider critical as a creator – and allows for discussions like the one we’re having here.

TL;DR? Look, at the end of the day, I think everyone in this discussion agrees that there are
publishers out there who will get impressionable talent to sign very screw-job contracts – but I have to be straight with you… I just don’t see this as that. I actually think this is a surprisingly fair shake for a creator who might choose to work with an established publisher (as Bryan, Lea, and Kris point out though… there’s lots of other avenues than “working with an established publisher” these days).

This agreement binds you to no long-term contracts, ties up NONE of the creators rights in the property, gives creators the maximum leverage to negotiate a better long-form agreement, lets either party walk away in a very short time-frame, and requests no waivers or warrants which are not going to be required from any large-ish publisher (or the creator would automatically incur by self-publishing).

Creators shouldn’t be naive about what they’re signing, but it’s equally important they make informed choices and not be naive about what realistically you have to give up to do any kind of work with a major publisher at any time in their career.

[Edit – There’s a follow up post here after a couple of e-mail conversations I had clarifying where TokyoPop does appear to be screwing creators over – but where this program might be part of the solution. – B]