Contrary to what some websites might have you think, more people work on comics than just the writer and artist. One thing we try to do at Comic Book Yeti is understand these roles and responsibilities and how they affect comics and creators.
This week, we talk with comic book lawyer, Dirk Vanover, about how comics law works and why it's something creators should pay attention to – especially when signing contracts.
COMIC BOOK YETI: How did you become a comics lawyer? Was it what you chose to specialize in when you were still in law school?
DIRK VANOVER: I went to law school with an interest in practicing entertainment law, intellectual property law, or something similar. After law school, I worked for an online retailer of Halloween costumes and party supplies for a few years as the associate general counsel. When I started my solo practice, I noticed I was receiving a lot of interest and questions from comic book creators I had met over the years at conventions. Since I've been an avid fan of comics for decades, it made sense to make it a key part of my solo practice.
"In the world of independent, creator-owned comics, an attorney should be involved in drafting or reviewing the agreements being used between co-creators – and co-creators should have agreements in place."
COMIC BOOK YETI: Is comics law vastly different from general entertainment law or other kinds of law?
DIRK VANOVER: Not really. It's typically applying basic legal concepts specifically to the comic book industry. There's a lot of intellectual property issues, contract negotiations, and so on, but understanding how these concepts are applied within the context of the industry are what makes it unique.
"Most of the disputes I see involve poorly drafted contracts where the parties didn't understand what they were agreeing to, or disputes that have arisen and there is no contract."
COMIC BOOK YETI: So, as a comics lawyer, what do you do? What areas do you practice in? What do your days look like?
DIRK VANOVER: As I mentioned above, I deal with a lot of contracts and intellectual property issues. I help clients draft or negotiate work-made-for-hire agreements, co-ownership agreements, publishing agreements, and option agreements. I provide advice on how to protect my clients' copyright rights, trademarks rights, and ownership rights, be it in the form of contracts or through enforcement against possible infringers. I also assist with copyright and trademark registrations, and I provide advice on how to avoid infringing others' intellectual property and otherwise staying out of trouble.
"There should be an agreement in place between co-creators. It should set forth payment, ownership rights, etc. It should also clearly set-forth who ultimately controls the property or makes decisions..."
COMIC BOOK YETI: Where do you come in during the comics creation and publication process? When contracts are drafted? Before the comic goes to press? Only if there’s a legal issue where someone might have broken a law?
DIRK VANOVER: Ideally, I would like to be involved as soon as possible. In the world of independent, creator-owned comics, an attorney should be involved in drafting or reviewing the agreements being used between co-creators – and co-creators should have agreements in place. Often, I'm asked to review publishing agreements after a work has been created. It's also not uncommon for me to be contacted after someone has received a cease-and-desist letter from someone alleging copyright or trademark infringement.
"...Most TV and movie studios are hesitant to option properties unless the ownership rights are squared away clearly."
COMIC BOOK YETI: Are there major things creators need to watch out for in their day-to-day? Anything that seems like it comes up a lot, or like not enough people pay attention to?
DIRK VANOVER: Contracts. I am a firm believer in using contracts. Creators should use them, understand them, and have a thorough discussion with their co-creators about expectations. Most of the disputes I see involve poorly drafted contracts where the parties didn't understand what they were agreeing to, or disputes that have arisen and there is no contract.
Also, I feel co-creators don't discuss ownership issues as in-depth as they should. There should be an agreement in place between co-creators. It should set forth payment, ownership rights, etc. It should also clearly set-forth who ultimately controls the property or makes decisions, and if need be, what might happen if one of the co-creators is unable to continue the series or chooses to cease working on the series. Having honest discussions about ownership issues early would head off a lot of problems.
Finally, and this is in regards to publishing agreements, sometimes it's OK to say no. There are a lot of comic book publishers out there, and the agreements some of them offer are often bad deals. Creators need to be honest with themselves about the benefits of working with a publisher versus going it alone, as well as ask what value a publisher offers them in exchange for the money and rights they will be giving up.
"More often than not, the publisher contract will be poorly written or unfavorable to creators. Payment terms might not be spelled out clearly, so creators might not have a clear idea of how much they might get paid or when. The payment terms can also be so heavily skewed in the publisher's favor the creators will make very little. The contract also might not allow for the creators to terminate the agreement, in which case the publisher almost de facto owns the property. Similarly, the agreement might also explicitly give all of the publishing and media rights to the publisher, thereby rendering a 'creator-owned' property creator-owned in name only."
COMIC BOOK YETI: That all makes sense, but I could see how creators might not think about all of this, especially when they're just starting out. Just so we're clear, how could creators be negatively impacted if they don't have a contract or agreement in place, or if they agree to an unfair deal with a publisher? DIRK VANOVER: There are a number of ways not having an agreement in place, or having a bad agreement, can hurt you. For instance, if you don't have an agreement in place with your co-creator, then it is unclear who has ownership or control over the property. For the most part, comics are collaborative and the artist and writer are seen as co-creators and co-owners. Under copyright law, co-owners of a work can do whatever they like with the property. Their only obligation to the other co-owner is to split profits. While I have yet to see this in the comic book industry, it is possible each owner could create competing series of the same story. Additionally, most TV and movie studios are hesitant to option properties unless the ownership rights are squared away clearly.
As for publishing, I can think of instances where not having an agreement in place can be both good and bad for creators. It can be good because it's easier to terminate and move your book to another publisher, but it can be bad if payment terms, rights, and responsibilities are not clearly spelled out. However, I have yet to run into an instance where a legitimate publisher didn't have a contract of some sort. More often than not, the publisher contract will be poorly written or unfavorable to creators. Payment terms might not be spelled out clearly, so creators might not have a clear idea of how much they might get paid or when. The payment terms can also be so heavily skewed in the publisher's favor the creators will make very little. The contract also might not allow for the creators to terminate the agreement, in which case the publisher almost de facto owns the property. Similarly, the agreement might also explicitly give all of the publishing and media rights to the publisher, thereby rendering a "creator-owned" property creator-owned in name only.
Overall, it is best to have contracts in place, attempt to negotiate them, and if you're going to agree to a bad or unfavorable deal, at least know it upfront instead of being surprised by it later on.
COMIC BOOK YETI: A couple years ago, you wrote Comics Startup 101: Key Legal and Business Issues for Comic Book Creators. What drove you to write it? Were you getting similar questions from people who reached out to you for advice?
DIRK VANOVER: I wanted to give comic book creators the same advice I give startups and other new business entities, and I wanted it to be easily accessible.
Very often, creators treat making comics as a hobby and don't take it seriously. Even if it is a hobby, it is still a business, and you should treat it like such. I wanted to provide to creators some tips to help protect them as they go about making comics.
COMIC BOOK YETI: And how can folks find you, whether they’re looking for legal representation or just someone interesting to follow online?
DIRK VANOVER: I can always be reached via email at dirk@vanoverlegal.com. You can find my industry blog posts at ComicsLawyer.com, and I also have a ComicsLawyer.com Facebook page where I post and discuss interesting industry news. Finally, I am also on Twitter @dirkvanover.