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Hi everyone!

One of my good Christian friends also loves comics. He wishes to publish his science fiction comics. One day he received an email from India (he lives in Australia by the way) and the publisher asked few questions. He has no idea what to do with the following questions here:

4. Do you want us (*the publisher) to sign any non-disclosure agreement so that you can be assured of 'NO pilferage' and share details with us freely?
5. What are the payment terms you are expecting?
This is first time publishing his comics. He - of course all of us - does not want to stuck in a loophole and get sticky situation :p Since many of you would have an experience of publishing and contracts, please provide some advice for him! I will pass your comments to him. 
Thanks for your time!
Youmin

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#4 sounds weird. Who retains copyright and trademark of the property?

 

The publisher should be suggesting rates in #5.

I also thought so Al,

So number 4 is about the copyright and trademark... This friend of mine is the story writer and the artist for his own comics so I think he should own the right obviously. Do you happen to know how do publishers works with the copyright?


Some publishers buy all rights or deal in royalties (60/40, etc). I would suggest getting the book "Legal Guide for the Visual Artist" by Tad Crawford I have the 4th Ed and it's very thorough regarding contracts,  copyright laws, privacy and artist protections, artist legals for using models, sales of reproduction rights, licensing and merchandising, etc. and gives excellent examples of legal forms.

"Legal Guide for the Visual Artist" by Tad Crawford, 4th Ed. (pgs 157-159)

Chapter 16 "Publishing Contracts" 

+Grant of Rights:

After setting out the names of the parties and the date, a book contract will detail the rights granted by the artist to the publisher (model agreement, Paragraph 1). "All rights" would be the transfer of all the rights possessed by the artist to the publisher. This would mean the publisher, and no one else, could exploit the work as a book or in any other medium without any limitation as to either territory  or time (although it might be argued that even "all rights" only means "all publishing rights"). If, for example, the publisher wished to exploit the work on tee shirts, posters, jewelry, or dolls, the artist would not have any right prevent such uses. Nor would the artist be able to prevent the publisher from exploiting the material electronically, such as over the internet or on CD-ROM. Artists who create designs for book covers may find that the design is subsequently used for advertising or paperbacks. If the artist has not negotiated a contractual right to additional payments or reserved all rights not expressly granted, the artist may have no right to additional payments.

The grant of rights can be limited as to uses that can  be made of the artwork, the time during which the work can be used in book form, and the erritory in which the book can be sold. Simply specifying that the work can only be used in book would prevent licensing applications and specifying that the grant is non-electronic would prevent use on a CD-ROM.

+ Subsidiary Rights:

Subsidiary rights cover many of the uses not permitted by the grant of rights, such as abridgements, anthologies, book clubs, reprints by another publisher, first and second serializations (which are magazine rights before and after book publication), syndication, advertising, novelty uses, translation and foreign language publications, motion pictures, dramatic, radio, television, mechanical rendition, or recording uses, and electronic rights. The definition of these rights can vary in different contracts.

The publisher often has the exclusive power to dispose of the subsidiary rights. The division of income between publisher and artist is specified as to each subsidiary right. Often the division of subsidiary right income is shared equally by author and publisher. However, the terms of the Authors Guild contract suggest that only publishing rights should be granted in a publishing contract. This means that the author would not grant to the publisher any control over, or benefits from, nonpublishing subsidiary rights, such as stage, record, radio, motion picture, television, audiovisual, and electronic rights.

The artist might particualarly seek to reserve all rights to advertising, licensing, and electronic uses. For each subsidiary right, the artist should consider demanding the power either to control the right or to veto exercises of the right by the publisher. At the least, however, the artist should receive copies of any licenses for subsidiary rights granted by the publisher.

+Reservation of Rights:

The grant of rights and the subsidiary rights provisions will normally cover all the conceivable uses of the artist's work. However, the artist should anticipate unthough of, even not yet invented, uses. This is done by insisting on a simple clause stating: "All rights not specifically granted to the publisher are reserved to the artist." (model agreement, Paragraph 2). Just as the CD-ROM is a recent innovation, the likliehood of further inventions is great and must be anticipated in the contract.

+Delivery of Manuscript:

The contract will require the artist to deliver a manuscript on or before a specified date (model agreement, Paragraph 3). Many publishers are now requiring that computer disks also be delivered. If the contract specifies that the manuscript be in "content and form satisfactory to the publisher", the artist should at least have the word "reasonably" inserted before "satisfactory."  A less likely solution would be to allow the publisher to reject a manuscript deemed unsatisfactory, but not allow the publisher to demand back advances given to the artist (model agreement, Paragraph 20).

If the publisher has seen either completed work or work in progress, the provision should be modified to indicate such work as satisfactory. Also, the artist should have a grace period for illness and similar eventualities which may cause the work to be delivered late. The contract may require the artist to deliver a manuscript consisting of more than just artwork. The artist may be responsible for the title page, preface or foreword, table of contents, index, charts, all permissions (including payments for such permissions), and a bibliography (model agreement, Paragraph 4 and 5). If the artist doesn't supply these materials, the publisher will normally have the right to pay for them and  deduct the cost from the artist's royalties.

+Royalties:

The artist may sell artwork for a flat fee, in which case no royalties would be payable. However, royalties permit the artist to share in the success of the book and usually are desireable. The artist receives a royalty for each copy sold, with the royalty rate often increasing with the number of copies sold (model agreement, Paragraph 7). If the artist has done both text and art for a hardcover trade book, the royalties might be 10% of the retail price on the first five thousand copies sold, 12.5% on the next five thousand copies sold and 15% on all copies sold in excess of ten thousand copies.

If the artist has only contributed art to the book, an arrangement that divides the royalties between artist and author is fair. The precise sharing depends on the degree of work done by each party, who originated the concept for the book and whose name will make the book sell (if this is relevant). Because of the complexity of royalty rates and the fact that these rates vary for different categories of books, the artist should really seek expert advice from more experienced artists or agents when trying to determine whether an offered royalty is fair.

It is important to ascertain which copies sold are counted for purposes of reaching the five thousand and ten thousand copy levels at which the royalty percentage escalates. While copies sold through bookstores at full price are generally counted, copies sold to book clubs or at high discounts are not likely to be counted. Fairness, however, is not based only on the royalty percentages. The way in which the royalty is defined is very important. Basically, the royalty should always be a percentage of the publisher's retail list price, the price at which the book will be sold to the public. If the royalty is based on net price- that is, the price after discounts to wholesalers and book stores-the royalties will be far lower than if based on retail list price. Of course, a royalty based on net price might be acceptable if the royalty percentage were roughly double the royalty rate based on retail price. This is because the discount given bookstores and book wholesalers by the publisher is usually in the 40-50% range. The royalty should not be a specific amount, such as $1 per copy, because the publisher invariably has the power to determine the selling price of the book.

Royalties will often be reduced on copies sold in digest form, in a foreign language edition, at higher than usual discounts, directly by the publisher due to the publisher's advertising, and in other circumstances which are listed in each contract. The artist must consider whether each reducton is fair because of the significant effect reductions can have on royalties.

+Payments, Statements of Account, Inspection of Books

Payment of royalties should be made on a periodic basis, usually quarterly or semiannually (model agreement, Paragraph 10). The right of the publisher to maintain a reserve against returns-that is, to hold part of the royalties in case the books are returned by bookstores-should be limited to a small percentage of the royalties. There should also be a time period beyond which such reserved royalties cannot be held (model agreement, Paragraph 9).

The Authors Guild provision requires a statement of account showing the total sales to date and the number of copies sold for the period just ended, the list price, the rate for royalties, the amount of royalties, the handling of any reserve against returns, and information relating to licensing income (model agreement, Paragraph 9). The Authors Guild provides for the artist to examine the publisher's books and records upon the artist's written request (model agreement, Paragraph 11).

... it goes into more than that, but that's all I can type tonight without getting a cramp lol. Hope there's some help there, just remember things differ between countries.

Whoa... really, really awesome advice you guys! Al Nickerson, thanks for you advice! Buzz Dixon, you always give me a good advice too. Thank you very much. Christian Cheek, thank you very much for sacrificing your fingers typing all precious information that not only my friend but I even have to learn! I'm grateful to learn the wisdom from Christian brothers and sisters via CCAS :) God bless you everyone!

It's no problem, we all help each other out, but I would suggest looking into getting legal books for visual artists/illustrators, grab a business  law book or reference and learn the way publishing works on both ends. Hope all goes well!

Youmin Park said:

Whoa... really, really awesome advice you guys! Al Nickerson, thanks for you advice! Buzz Dixon, you always give me a good advice too. Thank you very much. Christian Cheek, thank you very much for sacrificing your fingers typing all precious information that not only my friend but I even have to learn! I'm grateful to learn the wisdom from Christian brothers and sisters via CCAS :) God bless you everyone!

I wouldn't sign any contract that gave away any of the copyright or trademark to a publisher. You don't see this often with mainstream book publishers, but you do see it a lot in comics.

Yes true that. I even told him to check out the law and rules that used in India too so this may help him to not get in any trouble in the future. Thanks! I'm learning a lot!

Christina Cheek said:

It's no problem, we all help each other out, but I would suggest looking into getting legal books for visual artists/illustrators, grab a business  law book or reference and learn the way publishing works on both ends. Hope all goes well!

Youmin Park said:

Whoa... really, really awesome advice you guys! Al Nickerson, thanks for you advice! Buzz Dixon, you always give me a good advice too. Thank you very much. Christian Cheek, thank you very much for sacrificing your fingers typing all precious information that not only my friend but I even have to learn! I'm grateful to learn the wisdom from Christian brothers and sisters via CCAS :) God bless you everyone!

Goodness that's harsh. Why on comics?! It's sad to hear. I also would not give-away the copyright like that... :( Isn't there Intellectual Publicity Right for that?
Al Nickerson said:

I wouldn't sign any contract that gave away any of the copyright or trademark to a publisher. You don't see this often with mainstream book publishers, but you do see it a lot in comics.

Comics has had a long history of work-for-hire. Many creators signed bad contracts over the years. Some had their ideas swindled from them by publishers. In the Golden Age of Comics, many artists and writers just wanted to make a living and provide for their familes. Many weren't concerned with the business side of things. Artists have to be business people as well as artists.

Augh... terrible... no wonder clients who asked me to make comics required 'work-for-hire' system. Here in South Africa, there's the Intellectual Publicity Right that artists can keep their copyrights for their works, even though it's commission works for someone. Of couse artists must not let works, which it's done for certain client, to sell or give away. If that client wish to use an image for other purpose, for example print a cover art in different copies and use for advert etc, the client should buy the right from the artist...It's sad that people do not see comics as creative and intellectual property...

Al Nickerson said:

Comics has had a long history of work-for-hire. Many creators signed bad contracts over the years. Some had their ideas swindled from them by publishers. In the Golden Age of Comics, many artists and writers just wanted to make a living and provide for their familes. Many weren't concerned with the business side of things. Artists have to be business people as well as artists.

Hi guys! Thanks to Youmin I have also joined this great forum. I am the friend she's been referring to.

And thanks to everyone who helped with that good advice - much appreciated. I am in the process of negotiating with the publishing company, and this was their last reply to my mail:

1. Royalty:
A 10-15% royalty is offered when whatever payment is made ahead of printing the book is accounted for as 'advance' of the royalty amount. And where the author has a track record of good sales.
I think that this link can provide you the right insight:
Please go through it and let me know your thoughts. 
2. Proposal options
I would like to propose:
A. 10k INR per month (6 pages) + 5% of the net sales (right from the first book)
or
B. 12.5% of the net sales (10k INR per month (6 pages) as advance on the royalty amount)
or
C. Any other solution that you propose
OK, I'll be honest I don't understand options "A" and "B" -- can anyone enlighten me? BTW, 10k INR amounts to basically $180.
Thanks

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