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HURT COMICS: TokyoPop Contracts: Merde


What do you know, TP has put a fresh coat of paint on their crappy contracts by launching yet another "We're gonna make you a star!"  IP  farm.  This time, it's "Manga Pilots," where creators, for a flat fee, create a  24-36 page story But wait, there's more! This contract (which they call a "pact"), is written in twee, simplistic language:

"You’ll notice this doesn’t look like your everyday ordinary contract — the kind filled with double-column microscopic boilerplate and mumbo jumbo written by Hollywood attorneys — but, nonetheless, this is a contract. It’s written in the spirit of 'serious fun'..."
No matter how cute, how hip, how friendly a contract is written, crap is crap. Calling it a "pact" doesn't mean it's not a contract. Legalese has gotten a bad rap as a tool of obfuscation, which is the fault of the people who abuse it. It's a a tool that can also clarify, and a lack of legalese doesn't make a contract friendly to a creator. 
In fact, it makes a contract's terms as hard to interpret and enforce as it is to hold onto melted Jell-O.

But, wait, let me share with you what moral rights are, according to Betsy Rosenblatt, Harvard Law School:

"The term "moral rights" is a translation of the French term "droit moral," and refers...to the ability of authors to control the eventual fate of their works. An author is said to have the "moral right" to control her work. The concept of moral rights thus relies on the connection between an author and her creation.
The scope of a creator's moral rights...may include the creator's right to receive or decline credit for her work, to prevent her work from being altered without her permission, to control who owns the work, to dictate whether and in what way the work is displayed, and/or to receive resale royalties."

Then let me share with you this choice phrase from the Manga Pilot "Pact:"

"“MORAL RIGHTS” AND YOUR CREDIT
“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."

There you have it, folks: Moral Rights are dumb because the French thought of them, so give them up.

That's really all you need to read to know this contract sucks. The surrender of droit moral covers well the one-year exclusive, one more year after the exclusive to allow TP to match offers, and the PERPETUAL (that's forever, tee-hee) non-exclusive rights of TP to publish your work in any form without compensation or credit.
All this for a flat fee, the amount of which is not mentioned in the "pact." There's a nice blank spot for that.

This permutation of  TP's lousy track record with creator's rights is written in talent scout dialect. Read aloud, the terms remind me much of Steve Albini's description of hip young A&R guys in "The Problem with Music:"

"After meeting "their" A & R guy, the band will say to themselves and everyone else, "He's not like a record company guy at all! He's like one of us." And they will be right. That's one of the reasons he was hired.
"...A & R guys...present the band with a letter of intent, or "deal memo," which loosely states some terms...If the label presents them with a contract that the band don't want to sign, all the label has to do is wait. There are a hundred other bands willing to sign the exact same contract."

I am comfortable going on record as saying this is the most childish and disingenuous legal document I have ever read. 

Ce contrat est un morceau de merde. La même merde, jour différent.
There's some French worth learning.

Comments

( 102 comments — Leave a comment )
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chipzdarsky
May. 27th, 2008 05:38 am (UTC)
Hahaha! Fancy French and their fancy French ideas. That may be the most insulting paragraph I've ever read in a contract.
divalea
May. 27th, 2008 05:45 am (UTC)
Me, too. And after twenty-three years in comics, that's saying something.
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doronjosama
May. 27th, 2008 06:03 am (UTC)
This sickens me. Their original "creator owned" contracts chapped my hide pretty seriously, but this one is so incredibly manipulative and disingenuous, it actually makes me feel quite ill.

I weep for the teenagers/twenty-somethings who will be suckered in by this latest IP-grabbing scam.

Creators should own the rights to their stuff and have control over them. PERIOD. No exceptions. I guess I am just old-fashioned for believing in that concept anymore...
garden_hoe21
May. 27th, 2008 11:34 pm (UTC)
No, you're just "fancy."
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zrath
May. 27th, 2008 06:06 am (UTC)


Hey, I've got a few more words for TP.
Abruti!
Fils de pute!
Trou du cul!
(Translation available on request)
:D


doodlesthegreat
May. 27th, 2008 02:40 pm (UTC)
Not necessary. I think we can guess. o_O
(no subject) - mornmeril - . th, 12:00 am (UTC) - Expand
spoggly
May. 27th, 2008 08:34 am (UTC)
wat

That is seriously disgraceful, not to mention one of the most patronizing things I've ever read, which is saying a lot for TP.
theshaggyfreak
May. 27th, 2008 10:48 am (UTC)
Worst contract EVER!
You just might as well hand your brain over to them when you sign that thing. What a load of crap. I wonder how many will fall for it.
gailsimone1
May. 27th, 2008 11:13 am (UTC)
Yikes.
That is appalling.

I'm fine with a new creator being given opportunities that are less than ideal for any number of reasons, if such is their desire to 'break in, (though I believe the value of such is likely to be questionable at best),' as long as the creator is given all the facts necessary to make an informed decision, and the company plays fair and consistent with their end of the agreement. But that whole 'fancy French idea' stuff is just crap, and it mocks notions that creators should find essential.

Your A&R man analogy seems apt and insightful. Good on you for spotting this and making people aware, Lea.

Gail
divalea
May. 28th, 2008 03:34 am (UTC)
Re: Yikes.
Spotting it was like spotting an elephant in a tea shop. It's TP, so I always know checking the contract or submission form will bring great entertainment.
They never disappoint.
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divalea
May. 27th, 2008 01:26 pm (UTC)
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unityflow
May. 27th, 2008 01:49 pm (UTC)
My French is a little rusty but here goes:

Une grande arnaque

You can ignore that too TP.
uplinktruck
May. 27th, 2008 02:01 pm (UTC)
Most intellectual ideas coming out of France these days are beyond laughable. However this one, being older, makes some sense. A writer/artist should have some say so over their product.

On the other hand the publisher needs to be able to turn out a product that will deliver a profit. Without that control, the publisher will not be a publisher for long.

The ideal workable solution is somewhere in between these two ideas.

That said, this contract sounds like a ration of male bovine waste material, the smell of which none my abide. But then again, why any writer/artist would enter into any contract without their lawyer blessing that document?

That brings a question to mind... There is a writer's guild. Is there a similar organization of comic book artists? If not, their should be.
cu_mhorrigan
May. 27th, 2008 02:01 pm (UTC)
This is the reason that I self-publish, I keep the rights, I keep the money. I would suggest that self publishers seriously start with something like Lulu.com and http://drivethrucomics.com (With Drive through you get a 70 percent cut of the pieces sold, you just have to ask the folks there about being a self publisher, Plus your stuff gets seen on their sister sites rpgnow and others.) besides PDF's sell a lot more than dead-tree editions right now anyway.
mornmeril
May. 29th, 2008 06:18 pm (UTC)
Yup, you can take your pdf with you on your iPod or something, less trouble and environment-friendly.
dianamcqueen
May. 27th, 2008 02:02 pm (UTC)
Wow, artistic rights are "fancy french ideas" now. If I was handed that contract I'd laugh in their face. I never thought I could be talked DOWN TO by a piece of paper. Talk about insulting people's intelligence.

Gah, these people sicken me! What's the last line say? "Just stick the needle in your arm! It's fine! everyone's doing it! It makes you cooler!"

>:(
divalea
May. 28th, 2008 03:33 am (UTC)
"We can't spell 'droit moral,' but we know it's French."

If this was about five years ago, I'd be expecting "It's a French Idea, so we'll call it FREEDOM Moral."
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mattbayne
May. 27th, 2008 02:30 pm (UTC)
I just lol'd. Linking this.
doodlesthegreat
May. 27th, 2008 02:41 pm (UTC)
It just gets me that by saying one gives up their moral rights, TP is acting about as immoral as possible.
d_morris
May. 27th, 2008 02:49 pm (UTC)
A friend of mine and I were talking about this yesterday and how ridonculous it was. The language of this contract just bothers me. Apparently their trying to advertise this as not being a contest either though apparently stories are being voted on whether they get continued or not.


Also it kinda bothers me that a professor at my school keeps trying to get people who draw in a manga style to submit to Tokyopop though to be fair he does also say "Don't give them your best idea".
divalea
May. 27th, 2008 02:52 pm (UTC)
WTF school is that? The professor needs reprimanding.
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tonysalvaggio
May. 27th, 2008 03:35 pm (UTC)
I pretty much knew what I was getting into when I signed with Tpop. Overall they have been good to us, our editor is awesome and their creator relations have gotten better (there are some truly awesome people in the company). Psy-Comm 3 is coming out in Sept. and that will probably be it for us and Tpop for a while. There's things that I wish were better that I won't go into on the the net in a public forum.

However, this contract.. ick! I don't even know what to say. I keep getting rumblings about changes in how the systems work internally now. If this is the direction it's going.. "le *sigh*"
divalea
May. 28th, 2008 03:39 am (UTC)
I applaud your discretion. I knew creators weren't going to be happy long term. I have seen TP more than once in my career. I never signed a TP-like contract.
(no subject) - mornmeril - . th, 12:00 am (UTC) - Expand
msgeek
May. 27th, 2008 03:39 pm (UTC)
It's not coincidence that they're abbreviated as TP. Because that's the only thing that contract should be used for.
the_terrible
May. 29th, 2008 05:29 am (UTC)
Win.
mattbayne
May. 27th, 2008 05:47 pm (UTC)
Blah, editing...

Quote:
MATCHING OFFERS FROM OTHERS
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. Oh, you only have to come back to us with any third party offer you receive within one year after the Exclusive Period ends; after that, our matching right expires.


So if TP turns me down, and I take it somewhere else, and I get an offer, I have to tell TP about it, and tell them what the offer is? What if TP makes a matching or better offer, but I feel burned and rejected and want to go with the newer offeror instead of TP? Does "matching rights" mean I have to take their matching offer? If not, what is the point of the clause? Market research? Maybe there is something there that I am missing? I don't get it. Why, having been rejected, would I want to go back?

Quote:
AFTER THE EXCLUSIVE PERIOD OF THIS PACT ENDS
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. “Non-exclusive” means that both we and you can publish it and give others the right to publish it other formats. We’ll own and continue to have the exclusive right to publish any iManga or other adaptations that we make based on your Manga Pilot.


Am I reading this right? So after one year, my rights to do what I want with the work revert to me, but somehow they also retain rights to publish on the web or "other adaptations?" What do they mean "other adaptations?" That really should be clarified in this clause rather than elsewhere in the "pact." So rights revert to me, and I can take my comic and make a graphic novel or licence a video game or publish on the web or whatever, but simultaneously, without me, they can do the same exact thing? If that isn't what they mean, and all they mean is that they want to be able to publish the work on the web and in anthologies with other such submitted works, they should be clear.

Believe it or not: Dealbreaker:
WHAT WE CAN DO WITH YOUR CREDIT
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.


No, not OK. It isn't like they wouldn't find a place to put the Tokyopop logo in somewhere. How come the author/artist doesn't get the same consideration? That's just... well, weak, quite frankly. Half-hearted and weak. Txt in the name, what's the big deal?
nenimo
May. 27th, 2008 09:53 pm (UTC)
Matching Offers:
Here is the catch with this: So after TP are done with you, if some other company wants to buy the rights from you (IE. Shonen Jump) and they are a bigger company who has a much bigger market base and they are willing to pay you 5% royalties then all TP needs to do is agree to pay you the same even though TP might sell a whole lot less and advertise a whole lot less which gives you a lot less money in the end.

Not to mention, all the company based perks for working with another company. Like being able to use their characters in your story (If I work for marvel I can stil wolverine in my story and drive up sales if they approve of it, if I work for TP what characters do I get? I luv halloween?)

-AFTER THE EXCLUSIVE PERIOD OF THIS PACT ENDS:
the least of your worries is them publishing anthologies. They have non-exclusive rights, which means they can sell it just like you can. And remember, you have to tell them about any deals you get for the next year. So they can contact those companies after you inform TP about the deal and TP can sell them your story for less then what you want to charge.
TP also keeps the rights to publish this project in other formats in another paragraph, so TP can under sell you on that video game or movie based upon your manga that you want to license too.
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uniformgrey
May. 27th, 2008 07:17 pm (UTC)
I'm just... wow. I haven't seen the contract in its entirety yet (having heard about it here first and read through mattbayne's post) This is so... patronizing.

What's worse? Using legal-speak for a contract that a person may have to ask others about to make sure they understand it 100% before they sign, or talking like a snake-oil salesmen giving people a false sense of security like they're in it for you without properly defining anything and glazing over important facts?

'Pact'? PLEASE. This isn't some clubhouse oath, this is a contract defining your rights for something you've created. Sure a flash of cash is great, but some people who may end up signing up don't realize just how hosed they're going to be by signing this, and that they're throwing away more profit for themselves along with apparently their notoriety on their own damn work.

It takes some balls to go about it like this.
divalea
May. 28th, 2008 03:31 am (UTC)
Yeah, where's the pricking ingers with a poin and mixing blood, or spitting on palms and shaking hands?
gregmce
May. 27th, 2008 07:20 pm (UTC)
I'm surprised they just didn't go for broke and include lines in the contract like, "Don't worry your pretty little head over that."

I mean, REALLY! Wowza.

And yet, I suspect there are people who are already lining up to sign it. *sigh*
divalea
May. 28th, 2008 03:30 am (UTC)
It really did have that tone. I used to get talked to this way, and it didn't matter how many times I brought up objections, I was dismissed.

Like I knew nothing.
kyburg
May. 27th, 2008 07:53 pm (UTC)
TokyoPop - as always. "We're cute, ya gota love us!"

No. I don't. Ever.

(Dudette - California Orange County specials, walking in the door. They're ALL like that.)
divalea
May. 28th, 2008 03:29 am (UTC)
"Dudette - California Orange County specials, walking in the door. They're ALL like that."

Explain?
barberio
May. 27th, 2008 08:16 pm (UTC)
Hmm... Interesting, in that contract law universally requires the terms of a contract to be clear and understandable to a reasonable but uneducated person signing it. The 'moral rights' clause clearly fails this test, as do several other clauses... and pretty much the entire document due to it's cutesyness...

If this was passed by a lawyer at all, it's one who might need to be inspected by his bar association...

I think this contract would not hold up in court, but that won't stop TokyoPop from screaming and threatening people who signed it that 'You Signed A Contract So You Have To Do What We SAY!'.
divalea
May. 28th, 2008 03:29 am (UTC)
I would LOVE for a practicing lawyer to have a go at this.
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divalea
May. 28th, 2008 03:28 am (UTC)
The French thing was just so so stupid I was gobsmacked, which is why I focused on that. THAT is the killer paragraph right there. That's ALL anyone needs to understand to know the rest is shite.
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divalea
May. 28th, 2008 03:27 am (UTC)
They've already got Pilots in the works, so they've been at it a while.
I read one today. Nice art, god writing in the first half. Would've been excellent to develop as a webcomic.
But no, that $750...
bannman
May. 27th, 2008 08:59 pm (UTC)
This is incredible.. How a publisher dares offer such contract to an artist ? This is beyond me. I knew Tokyopop was sucking but not that much... And it's not because I'm french.
meritahut
May. 27th, 2008 09:45 pm (UTC)
It sounds like a "see! we're down with the kids!" attempt to describe such standard things as work for hire, options so that the publisher can build a line around a successful creator by publishing their next work, etc. Maybe someone there thinks, as they search for younger and less experienced creators, they have to make the contract more "with it" or people won't understand what they're getting into. There are times when you're creating something just to put bread and butter on the table, and there are times when work for hire is going to bring in more money than a royalty deal... and there are times when you don't want to give up your darlings. Sometimes it makes sense to give up rights, sometimes it doesn't, and really does depend on the situation, and a publisher should be fair about which situations are which.

But, I'm saying all this on a quick read of the post and the comments and before reading the actual "pact." I'd like to think their hearts are in the right place... even though I've heard the usual rumours that no one has proven the actual existence of a publisher's heart.
meritahut
May. 27th, 2008 10:21 pm (UTC)
I'm sorry to disagree with the prevailing opinion, but except for the idiot section in the "pact" about French terms, this seems slightly better than a lot of work-for-hire publishing contracts. The terms are not unreasonable; the "SPEAKING FREELY ABOUT THIS PACT" section is way better than a lot of paranoid publishers who just don't get it about developing an audience and buzz and sharing your work with your friends and fans (some publishers would even try to prevent you from posting your own sketches that they turned down); and it's apparently trying not to condescend but to explain each standard contract section to someone who might be really young.

Trying to.

Maybe it would have been better to have the real contract in regular legalese, and have an explanation of it attached, but by making the explanation the actual contract, there's no chance of someone saying "Does the contract REALLY say what they claim it says?" A lawyer would have to decide whether or not the "plain speak" version carries proper legal weight, but you know TokyoPop's lawyers wouldn't have let it out the door if they couldn't show that.

I could have done without all the "Well, we're just sitting here chit-chattin' with ya'" extra verbiage, but, after slogging through a lot of really long and wordy contracts, I'm actually glad to see one that just tells you right upfront what it's asking and what profit they expect to get from their (big or small) monetary investment in you (which includes not just what they pay you but all the costs of printing and marketing and people-hours), and leaves it up to you to decide, "No, I'd rather do it a different way."

edited because I just can't ever stop tweaking things

Edited at 2008-05-27 10:37 pm (UTC)
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