Tokyopop: the other side

Well, now that the moral outrage has subsided a bit, other folks are coming out to say that the Tokyopop Pilot Program pact isn’t that bad.Editors Paul Morrissey and Hope Donovan speak in a press release which manages to both be written in standard English and make some vital points that did not come across in the contract.

We’ve made the contracts generic, to include as many creators as possible, and what you see is the same deal extended to everyone. We’re proud to be able to present these contracts as they are, so that love it or hate it, we’ve empowered potential manga creators to understand the terms long before they propose a project.

Making the contracts available to all is just the first positive step for TOKYOPOP that the Pilot Program represents. Of course we want our Pilots to be successful, and we want to work with Pilot creators to develop their Pilots into other media. And if we do so, an entirely new contract is drafted for that particular project-whether it be a full-length book deal, a film/TV deal, etc. However, TOKYOPOP realizes that some Pilots will not develop beyond their initial stage. And that’s why the Pilot Program is also progressive in returning rights to creators. For any Pilot that doesn’t pan out, the rights to the project are returned to the creator after the one-year Exclusive Period ends. After that, the creator is free to take that exact chapter created for us as well as the property anywhere they like-whether that’s self-publishing, publishing with another company or putting it on the back burner. At this point, for example, if the creator were to land a film/TV deal based on their Pilot property, TOKYOPOP would have no stake in that venture.


The most evenhanded take on the contract comes from Canadian producer type Brad Fox who points out that a lot of the elements that are so objectionable are actually quite standard, including the lack of “moral rights.”

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.


It is true that America does not recognize “moral rights” — setting it aside from most of the rest of the Western World. But it is equally true that this is not something that Toykopop came up with — although they did some up with the idea of totally blaming the French for this troubling idea. Fox’s post is well worth reading in its entirety. He comes back to the issue after having heard more about Toykopop’s track record and the low $20 a page rate, but still thinks it’s not such a bad contract:

If there’s value in your premise you can take it to another publisher, or self-publish it, or start serializing it on the web… if there’s not, you can do something else – but either way if you’re smart you can start with a base audience larger than you would have had otherwise. How is that a loss for a creator?

It does mean that creators have to be willing to walk away from deals… and I know firsthand how hard that can be. But there is still value there, and ways for creators to work this particular program to their advantage.


Current Tpop creators have also begun speaking up, at least the bold ones like Rikki Simons:

Given all that, I suppose the question goes, why did Tavisha and I publish with Tokyopop? Why did we sign our (better) contract with TP in 2003 instead, as one Star Blazers douchbag once put it to me, “go with a real publisher?” Because, my Dear Mr. Bag, however Hollywood Tokyopop wants to be, they were then, when we signed our contract in 2003, and still are, a real publisher. They pay a $21,000 advance for each book that I create with Tavisha. We keep our copyright and allow them use of the copyright while they are publishing us (granting them licensing power). We can tell them goodbye and take our book elsewhere if we ever pay back, or when our sales finish paying down, the advance. In the mean time, they get our books into regular bookstores. I am not looking for a movie deal. I am a writer of illustrated books. This, to me, is justice, and for thousands of authors the world over this kind of agreement has been justice for more than a century.


Tintin Pantoja also weighs in:

On other notes, I guess everyone on LJ and beyond has been blogging about the contract stipulated for Tokyopop’s Pilot Manga Program. I don’t feel like I’m in a proper position to weigh in. There have already been better–informed statements in the past few days. As someone who’s currently working for the company in question, no answer from me can possibly come across as unbiased.

I WILL say that those who are skilled in the craft , possess initiative, research their options, have financial and emotional support through the inevitable lean periods, and, most of all, respect their abilities, will probably find satisfactory outlets. I say ‘probably’ because so much is due to sheer luck and circumstance: what language you speak, what part of the world you live in, and the opportunities that happen to cross your path. Thanks to the internet, those opportunities have expanded considerably.


Jennifer De Guzman comments at Johanna’s blog that smarmy language aside, this isn’t even the worst contract on the block:

Thanks for this, Johanna! I was curious about secondary rights and such. This means the Tokyopop Pilot Program a lot less exploitive than Zuda, I think — that contract takes all rights for not much more money, and I don’t recall a response as vehement. It’s probably because the Tokyopop “pact” was just so stupidly written.


We actually received private communiques from people we respect who pointed out that contracts offered by DC, Dark Horse, Oni and so on are just as restrictive at the end of the day, retaining trademarks, co-owning copyrights, holding onto ancillary rights and so on. (That’s a blanket overview and not a universal analysis of any one company’s contracts.) The sad bottom line, as we read it, is that in comics, it is still standard operating procedure to exploit IP in a way that is vastly more favorable to the publisher.

Of course that’s a simplistic generalization. In the book publishing world, where graphic novels are becoming more and more a part of regular publishing, it has long been the enlightened belief that giving best selling creators a bigger piece of the pie is incentive for them to stay with you and keep making you, the publisher, money. It’s a rarified attitude and one that, sadly, we imagine will be going the way of the dodo eventually. The book industry is beginning to look at the ways it has done business. Bob Miller’s new Harper Collins imprint lowers advances in return for a bigger back-end, non-returnability is becoming a more and more talked about alternative, and the business model is rapidly changing in myriad ways. (You can bet we’ll be talking about this over the weekend!)

In the end, we regret not a whit of our righteous anger. The contract is written in an offensive way and the pay is so low that you might as well do it yourself. Luckily, as Tom points out, people have options now.

Always remember that the most successful and admirable creators have become so almost uniformly by not signing contracts like this one. There are so many options today for a lot of what they’re promising you, there are a ton of great publishers and many viable self-publishing options. If your work doesn’t click so that it can find purchase with a company that’s not ripping you off, or it fails to make a name for itself on its own, that’s a strong sign that the company’s interest in you is dependent not on the awesomeness of your talent and ideas but on their ability to screw you over. Please, don’t let them do it.


And yet, reading the responses over on the Tokyopop message board where this is being discussed, it’s hard not to see, as Kiel Phegley put it in the comments here, the young aspirants who really don’t have a fucking clue how to do this. We flash back ourselves to our own first published writing, when a penny a word seemed like a king’s ransom, and just the idea of getting published had the whole family, from Tucson to Nyack, excited. It’s easy to imagine young Eloise “Bonzai Trooper”Jones excitedly telling her parents that Toykopop, the #1 American manga publisher, has accepted her “No, teacher! It’s sore!” manga pilot and the family beaming with pride. They don’t care about $20 a page. They just want to see Eloise in print or on a phone or whatever.

Everyone has to learn their craft somewhere. Some young folks may well learn from the Manga Pilots program. They may learn how to get better at their craft, or they may learn what it feels like to get screwed. Everyone will have a different story, we imagine.

Comments

  1. Michael says:

    The first story I ever published, I ended up getting paid more than initially agreed upon because the magazine came into some unexpected revenue and decided to pass the good news along to contributors.

    I guess I shouldn’t expect that in the future.

  2. Mark Waid says:

    Yeah, but. But, but, but. Craptacular page rate aside, shameful hucksterism passing as a “warm, caring contract” aside, the part that still sticks in my craw–the clause that is utterly unjustifiable on any level whatsoever–is the “we reserve the right to not actually credit you” part. That’s heinous. That’s repulsive. That’s an audacious attempt to drive new media traffic to believe that Tokyopop and only Tokyopop is the sole author of the material. The rest of this “pact” still makes my skin crawl, but that’s the clause that makes me actively want to open up a Pitchforks & Rakes store right next to TP. Would you agree to write or direct a movie if there were no guarantee any creative credits would ever appear on screen? Then why would you agree to do a TP project under the caveat that, particulaly on (but NOT LIMITED TO!) new media, they might (translation: are planning to) leave your name off and claim sole authorship? What, they can’t find room on the iPhone screen to put the artist’s name? If they can can find the room to put the fucking Tokyopop logo, they can find room to bill the creator.

  3. Maybe I’m missing something here, but if the limitations of space are so severe that it’s impossible to include a legible credit, how is anyone going to read the speech balloons?

  4. I’m sorry to disagree, but it is that bad. The contract is faux-informal, and prevents creators from making an informed decision about whether to accept its terms. The real problem isn’t that it’s adhesive, it’s that it pretends to not be.

    The point of using ‘plain English’ in transactional contracts is to ensure that the other side has a clear understanding of its rights, responsibilities and obligations if it chooses to enter into the agreement. It’s a tool that is particularly useful when at least one of the parties is not sophisticated, and is not an attorney.

    This contract does not use ‘plain English’. Tokyopop is using this agreement as a tool of persuasion, without giving creators the benefit of any alternative perspective. It’s appalling.

  5. Nathaniel says:

    As Mark says, the key moral right that is respected even here in the US is the right to be recognized as the creator of a work.

    You can bet TP will be placing their logo and copyright notice on any work in any media. I’d be happy if TP tied the use of credits to the use of their own branding — if it is truly impossible to fit any logos or credits in there, then it should apply to both the publisher and creator.

  6. This is a bad bad contract any way you cut it.

    I’m very afraid the “kinder, gentler” approach they use, which also is very effective in glossing over all those annoying legal clauses that benefit and protect the creator, will dupe a naive kid just chomping at the bit to break into comics.

    They do their darnest to make the informal “pact”, a mere formality really on your road to comic stardom, seem like anything but the legally binding agreement it is.

    We have a good review of the contract over at Unscrewed.

    http://www.unscrewedcomic.com/article.php?story=tokyopop

  7. I’d like to clarify and/or correct something Heidi wrote.

    Oni Press does not retain the trademark of ANY book we have ever published. Similarly, we have NEVER retained or even shared copyright on ANY project we have EVER published.

  8. Katie Moody says:

    Quoting Heidi: “We actually received private communiques from people we respect who pointed out that contracts offered by DC, Dark Horse, Oni and so on are just as restrictive at the end of the day, retaining trademarks, co-owning copyrights, holding onto ancillary rights and so on. (That’s a blanket overview and not a universal analysis of any one company’s contracts.) The sad bottom line, as we read it, is that in comics, it is still standard operating procedure to exploit IP in a way that is vastly more favorable to the publisher.”

    And here I feel compelled to defend my employer. While Dark Horse, like any company, does have its flaws, respecting creators’ rights is NOT one of them: The copyrights and trademarks to any creator-owned properties are retained by the folks who create the work (see: Sin City, Hellboy, Concrete, Samurai: Heaven and Earth, etc.), and it’s the central issue the company was founded on back in 1986. While most of our creator-owned contracts do stipulate that media and digital rights will be under Dark Horse’s stewardship, even those deals aren’t cut without the involvement and consent of the copyright and trademark holders.

    We do publish a lot of licensed properties, and often publish Dark Horse-owned properties, so work on those books will necessarily be work-for-hire, as will most coloring and lettering jobs. But whomever has claim to the copyright and trademark will always be stated as such in the indicia, and we try to be diligent about including copyright and trademark lines in promotional materials. It’s never our intention to come across as owning any IP– creator-owned, licensed, or otherwise– that we don’t actually own outright.

    It’s a privilege to work with the creators we attract, and it’s in our interest to do right by them legally– else they’ll stop coming around. That’s certainly drilled into those of us in Editorial from the start.

    Respectfully submitted.
    Katie Moody
    Associate Editor

  9. Allen says:

    Dear DC, Marvel, Dark Horse, etc.,

    Take a proactive stance regarding bringing in ACTUAL new talent.

    Thank you.

  10. Charles RB says:

    Mmm. I’ve heard rebuttals at the Tokyopop outrage, but I’m personally going to go with Hernandez, Stillwell, Waid, O’Malley, and Oni Press & Dark Horse on this ‘un, as I’m assuming they’re in a position to know this stuff.

    And I’m laughing at Manga Blog’s “ooer, there are people who hate Tokyopop for reasons of their own!” comment. Laughing a LOT.

  11. Tim Tylor says:

    Might be worth pointing out that Rikki Simons wasn’t writing to defend the pact, and her full post is actually very critical of and concerned about it: “So I conclude, Tokyopop, my Tokyopop, you would benefit, and I say this as someone who wants to see you make good, who wants to see you prosper under a system of justice — dump this Pilot Program and instead issue real contracts like the one you gave Tavisha and I in February of 2003.”

  12. Tim Tylor says:

    Erratum: “his full post.” Apologies to RS. :(

  13. I’ve been a bit surprised at the level of vitriol spat out over this contract. I’m no cartooning professional, and I freely admit that I never got around to parlaying my top-10-percent LSAT score into an actual law degree. But the terms of this contract aren’t as mercenary as they’ve been made out to be, and they certainly aren’t as fraught with peril as (for example) the “creator-owned” contract Marvel was offering for Epic a few years ago. I wouldn’t ask a lawyer to illustrate one of my scripts, and this tempest in a teacup is why I wouldn’t turn to a cartoonist (or myself) for legal advice.

  14. I don’t think it matters if other contracts are worse. That’s the old “two wrongs” argument and doesn’t wash. A bad contract is still a bad contract.

    The credit problem Mark Waid points out is heinous, but corporate ownership of someone else’s creations is almost as bad.

    If someone wants to sign up with Marvel or DC to work on Spider-Man or Batman, that’s great. But in all other cases, you should own what you create. Some creators have had their characters and stories taken away from them due to the stipulations of this contract… or one with less BS folksy worded nonsense meant to lull you into signing away ownership of your own work. That they signed- that others throughout the history of comics in America have signed even worse contracts- doesn’t make it anywhere near okay.

    Work for hire needs to stop. Corporate authorship needs to stop. There’s still plenty of money to be made without scamming creators out of ownership of their intellectual properties.

  15. But I’m not surprised at the vitriol. The cutesy-pie wording of this contract is unconscionable. It’s playing on the idea that would-be creators think “Anyone who makes such a chatty li’l contract like that must be looking out for my best interest… they’d never take my ideas and then shut me out of the loop.” It’s a raw and blatant attempt to shuck and jive the naive. Disgustingly cynical.

    That’s what people are reacting to. It’s like getting a razor blade wrapped in cotton candy.

  16. Excuse me, Todd, you don’t have to be a lawyer (nor have a top-10% LSAT) to know this contract stinks.

    A few years in comics will teach you. I parlayed my bottom-quarter high school GPA into “smart enough to know better.”

  17. I still remember the conflagration that erupted thirty years ago when Pocket Books came up with a new “standard contract” that (as i recall), among other things, had an options clause that essentially meant that once they bought your book, you couldn’t show the next thing you wrote – even if it was a totally unrelated work – to any other publisher until they decided not to pick up their option on it… and gave them like a year (or possibly up to a year to decide after publication of the first work, which they could *also* delay doing for up to a year…) to make the decision, during which time, you couldn’t sell anything else to anyone else.

  18. So question, as I was looking at tokyopop thinking it sounded kinda appealing. For an upstart artist what else is there? I’ve yet to hear of any other companies that are yet publishing manga-type stories… and I already publish a comic online, which has made me a grand total of no dollars, so, yah know.

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Trackbacks

  1. [...] At The Beat, Heidi MacDonald takes a long look at the whole thing and concludes that it may not be the worst contract out there, although the possibility of exploiting the young and the enthusiastic is still troubling. [...]

  2. [...] Heidi MacDonald: We’re hearing that editorial cuts at Tokyopop include Rob Tokar, Luis Reyes, Paul Morrissey, Hope Donovan and Tim Beedle. Which means the two editors in charge of the Manga PIlot Program. who were defending it just last week are now gone. Oops. [...]

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