Thanks again.

1. Ultimately I suppose the central problem with the document is that it attempts to simultaneously serve as a contract and as PR material to promote the contest, with inadequate results on both counts.

I think you probably hit the nail on the head here. Especially when the company has a bit of checkered past… suddenly putting on “I’m just a casual guy” airs get’s everyone hyper-sensitive. I appreciate the approach (I hate explaining boilerplate to people who don’t normally do contracts) .. but I just don’t think it works.

2. On the other hand, it seems to me that “Be suspicious of poorly-worded contracts” would be decent advice, particularly when the other party stipulates that the only avenue for resolving disagreements about the contract is through an arbitration service of their choosing.

Vaguarity in contracts is a double edge sword. Just remember that any point that you think a publisher could loosely interpret to screw over you, is one that can be used against them in turn.

I absolutely agree with the underlying tennent of this whole movement - which is people shouldn’t trust what they’re signing to “goodwill”.

3. As to your third point, I think people’s problem stems from “you give us the right to ask you to do” reading like “you agree we can require you to do”.

I think maybe this one just comes down to poor translation. I can see from a publishers eyes what kind of outcomes they might want to see from the program - but most creators just see the potential treadmill of development hell.

1. Isn’t it fair to say that non-exclusive rights aren’t worth quite as much as exclusive rights?

I get what you’re saying. But we’re talking about a singe 6-24 page promotional piece, so the value of “less than nothing” is still “nothing”.

There’s value in it if you continue the series (ie: it’s the first chapter of a larger story or introduces characters you continue) in which case it’s value isn’t diluted by being non-exclusive.

The only other “rights value” I can see in that format is in an anthology - where non-exclusive isn’t a big deal, because of the nature of anthologies.

Let’s put it this way - I consider “non-exclusive but with an audience” more valuable than “exclusive with no audience”… but each creator has to figure out what value they put on a potential audience - and what access to audience they might have outside of a traditional publisher to solve that equation.

2. Your reasoning seems entirely counter to the language of the contract, [...] Isn’t this fairly unusual and unusually unfair?

My reasoning comes from an understanding of how the law works underneith the “casual translation” - and ignoring language that’s pretty clearly there to frighten creators into not plagurizing anything in their pilots.

No one sues individual creators in a vacum (as the creators, generally, don’t have money). It’s in the publishers interests to defend the cases because they have better law teams, and can recoup damages for frivalous lawsuits. Where they do want to be covered is that *they’re* not stuck holding the bag if their creators do steal ideas from someone else.

This is not unusual at all, similar warrants are standard in almost any contract where someone is supplying original creative material: writing, art, design, music, even dance choreography.

3. If the creator’s goal is to get the book offer TP’s dangling them, isn’t it relevant to point out that they can be given a “Return To Start” card?

Maybe I’m missing something, but I’m not sure why people fixate on this clause. Just to transpose it to an area I’m more familiar with: If I decline to buy a script (or television episode) but offer to pay the writer a nominal token to do another (or rework their last one) that’s a *good thing*. Although I don’t think I can make money with what they’re doing quite yet - I’m still interested enough to think that it’s worth my time, money, and advice, I can improve the output of that individual.

If they don’t agree - they don’t have to keep working with me.

I’d prefer that to a system where the only two outcomes are “deal” or “no deal” (heh), because in the latter anyone who is “on the fence” is just going to get axed.

4. The issue is that TP’s asking the creator to waive rights without adequately explaining their meaning and context, and couching it in terms of francophobia. You’d agree that this is fairly unethical, right?

The pedant in me would argue that it’s not any publishers job in a negotiation to explain the meaning and context of the agreement - that’s why I’m such a huge fan of creators using lawyers and agents to negotiate their deals (even if you only use an agent to do contracts… which is quite common).

I will agree their attempt at “accessability” simply doesn’t work in some sections, at all, and this is one of them. But - honestly - do you think

“Artist waives any and all interest, stake, or claim including but not limited to so called “moral rights” in all media, throughout the Universe in perpetuity.”

is going to be less troubling?

5. How is “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” specific enough to be called specific?

It’s specific enough that they have to at least invent a justification for an omission, not just “we felt like it”. Whether or not you agree with their rationalle - this at least allows it to be a point of conversation.

Again, most contracts would just be boiler plate “we’ll credit you, but if we forget, or can’t, or don’t - it’s not a breach of contract”.

5b. how does the ability to not credit the creator when inconvenient not undermine the entire point in your view?

Because, honestly, when I’m interested in a project the first thing I do is Google the title to find non-publisher sources for that work and creator. If a creator doesn’t self-promote enough that an interested fan can’t find them even if their name never appeared once on a publisher site - they’re going to have a hard time suceeding.

That’s not to say that I don’t think they shouldn’t be credited prominently and reliably… I just think that the agreement strikes a nice balance between the two (now then if TokyoPop doesn’t follow the *spirit* of the guidelines, that’s something else entirely).

“pretty fair for a promotional piece you can walk away with full rights to at the end of the day”

Isn’t it fair to say that non-exclusive rights aren’t worth quite as much as exclusive rights?

“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.”

Your reasoning seems entirely counter to the language of the contract, which states “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 that’s all before they get to the possibility of you losing the case. What seems particularly outrageous about this is that it says nothing about granting the creator the authority to make decisions about legal strategy in such situations. In fact, given that TP is granted copyright administration rights, it would seem that TP would do all the deciding and the creator all the paying. Isn’t this fairly unusual and unusually unfair?

“my understanding would be that TP has the option to commission another pilot … Again this comes back to the core discussion of “is what they’re paying you 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.”

If the creator’s goal is to get the book offer TP’s dangling them, isn’t it relevant to point out that they can be given a “Return To Start” card?

““Droit Moral” (Moral Rights) in French International law that is almost entirely incompatible with North American copyright law… If a company works internationally they almost always need these rights specifically waived”

The issue is that TP’s asking the creator to waive rights without adequately explaining their meaning and context, and couching it in terms of francophobia. You’d agree that this is fairly unethical, right?

“The specific exception that credit can be omitted if it’s just technically not possible, is understandable.”

How is “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” specific enough to be called specific? Particularly given TP’s apparent unconcern about prominently crediting Pilot participants when it is easily feasible (their webpage currently only displays an author name on a pilot’s actual title page; all promotional, listing, and profile pages just identify the pilots by title and genre). Considering that you repeatedly refer to unpaid use in various formats being a positive for the exposure it affords the creator, how does the ability to not credit the creator when inconvenient not undermine the entire point in your view?

Maybe if they tried really hard they could get that to cover some limited merchandizing… but a halfway competent lawyer would see all kind of ways to contest that. And the big money-making “adaptations” (making a television show, movie, action figures…) certainly wouldn’t fall under those clauses in any reasonably defensible way.

Neither would adapting characters, plot, designs, or all the other fun stuff that you sign away with Zuda or Platinum.

I was reading http://www.unscrewedcomic.com/article.php?story=tokyopop and the author brought up another point. Granted, giving some adaptation rights is important for marketing and publicity, but there was a line Brian didn’t quote:

“This could include, for example, breaking apart or resizing panels for display on a mobile phone screen, retoning panels to fix those nasty moiré patterns, adding colors, transforming the Manga Pilot into an iManga with a soundtrack, and more”

It’s the “and more” concerns me because, “More covers an awful lot of territory. ”

I suspect like TP’s attempt to make a casual “pact” between buddies had left people eying them with suspicion more than if they’d just gone with the usual “legal mumbo jumbo”.

That’s correct - but that’s pretty much what I was trying to say. If doing one pilot makes sense for a particular creator - doing a second isn’t going to worsen the deal… and if they’ve got a better offer at that point no one can force you to make a second pilot. Just walk away and start the clock ticking on the time until the rights revert back to the creator in full.

All I think TokyoPop is trying to outline in that clause is that there are outcomes of the program other than “we offer you a full contract” or “we cut you loose”. This gives them some time for further consideration - but it doesn’t obligate the creator to take them up on it.

However, TP’s contract or pact states:

“Oh, yeah, we’ll pay you another Pilot Fee when you deliver and we accept the second Manga Pilot. All the same stuff in this pact that applies to the first Manga Pilot also applies to the second Manga Pilot”

From that, it sounds like you’re locked into the same deal as the first pilot.

I agree with you that the trend to “plain english” contracts and licenses makes some issues more complicated, rather than more clear.

I prefer the approach taken by Creative Commons (or HotHead Games EULA where they have either a separate document, or a few explanation lines after each clause - but keep the agreement in “clear” legaleese.

Not checking my date-stamps is very poor form on my part.

Therefore, let’s pretend I didn’t write the last line of that previous post. I just want the timeline of the discussion to be clear.