Marvel's Creator-Owned contract for Epic Comics

Marvel is no longer accepting submissions for Epic Comics. See here for more information.

DISCLAIMER: Although I'm excessively proud to have scored better on the LSAT (163, or 90th percentile) than most law school graduates, I am not a lawyer and this is NOT a professional legal analysis. Law is just a dirty little hobby of mine. You should have someone who actually went to law school (and preferably passed the Bar exam) review any contracts and advise you before signing them. Corrections and clarifications from those better qualified or better informed than I are welcome.

Epic editor Stephanie Moore has said that any stories set in the Marvel Universe simply must be done as Work Made For Hire, not under Creator-Owned terms. Marvel wants to own everything that appears in their universe (with the obvious exception of visitors like the Justice League). If you create a new character and set the story in the Marvel U, that's treated as a special situation that gets you some formal "participation" in the character (a cut of the royalties on any licences, offered at their discretion), but still as WMFH. If that's what you're writing, go read the WMFH contract instead, and the info on my advice page about Marvel's New Character agreement.

If you submit a proposal that's not set in the Marvel Universe, they'll still want to take ownership of it before they publish it. This is a change from their originally announced plans. Because Marvel's biggest source of income these days is from licensing, their execs don't want the comics department "wasting" their time and money publishing material they don't own. So you can leave the WMFH contract out, but if they accept your script, they're going to ask you again to sign it. Sending your script in without an accompanying contract is not putting yourself at any risk; the contracts are mostly about you giving stuff up, so you're actually better off in the initial stages without signing one. That way you can always walk away without signing if you don't like what they offer. Don't expect the Creator-Owned contract unless you're Alan Moore or Stephen King or someone of that stature. But as you'll see if you keep reading, the differences between that contract and the WMFH contract with the New Character agreement aren't all that dramatic anyway.

OVERVIEW: I've received what I believe to be a legitimate copy of this contract, from an anonymous source. (As far as I can tell, he works at Marvel, but I can't say for sure. The contract is a dozen pages long and would take significant legal expertise and a lot of effort to fake.) As I anticipated, it's neither as creator-friendly as, say, Image's almost-no-strings-attached terms, nor does it require you to give up as much as the "Work Made For Hire" contract does. But to be blunt, it's a lot closer to WMFH than it is to Creator Ownership (as it's usually thought of). Ever heard of a writer/artist possibly getting fired from producing his creator-owned series? You're about to.

I'm not going to show the contract itself, because it's not mine to publish. And I'm not going to go through it paragraph by paragraph (like with the others), because anyone who might someday be looking over their own copy and trying to decide whether to sign it really needs a real lawyer to go over it with them, not me. Plus it'd be astoundingly tedious to go through all 12 pages, even with my patented Breezy Conversational Writing Style. Instead I'm going to pick out the most important and interesting points, which should give you an idea of whether this is something you'd want to pursue or not.

The general "theme" of the contract is very much as if Marvel owns your property and you've been hired (with pay) to produce it, but you also get a cut of the profits and a means of reclaiming your property down the road. Those aren't the actual terms, but that's the effect of it. For example:

Marvel gets the "sole and exclusive right" to publish this work and any spin-offs or sequels, in any format (including electronic media) for the duration of the contract. (No surprise; this was a given.) Note: "The duration of this contract" is longer than just the time to produce your mini-series or whatever; it lasts until the contract is terminated, as described below.

They get a perpetual licence to do reprints, even after the contract has been terminated.

Marvel will pay you for your services as writer/artist under the same terms as the Work Made For Hire Packaging Agreement (presumably allowing you to hire a team of artists, as you might need). Note: This is just for doing the chores of producing the book, not your compensation as the owner of the property.

You get 40% of the "Net Paid Receipts" for electronic publishing, merchandise licencing, and movie/TV/game licencing. Marvel gets 60% of it. Their definition of "NPR" looks like a pretty standard formula that works out to "total income minus Marvel's costs"... which leaves some room for accounting tricks, but probably less so than in Hollywood contracts.

You don't get money for foreign reprints. This is a long-standing sore point regarding Marvel contracts, as I recall. (This doesn't apply to Diamond-distributed shipments overseas, but to foreign companies that licence the material to translate and publish domestically.)

Marvel has sole rights to licence your work for movies, TV, games, etc. including sequels. Income from that falls under those 40/60 terms.

If you don't produce the material to Marvel's satisfaction, they can A) ask you to "fix" it, B) hire someone else to "fix" it, and even C) fire you and get someone else to do the job "right". Paranoid conspiracy theories notwithstanding, they're going to prefer A over B, and B over C. But they could do it. Note that you'd still be entitled to your 40% royalties as owner if this happened... assuming there were any profits on what was produced without you.

If Marvel feels there's something in your work that's obscene or libelous or a copyright violation or anything else that could land them in court, you have to give back whatever money they've paid you, and the contract is terminated. Ouch.

Marvel will cover the costs and paperwork of registering the copyrights for you, and won't contest your claim of ownership. If someone violates your copyright, and Marvel joins you in suing for it, you'll split the legal bill for it with them (you paying the same as Marvel Corp.), and the award (if any). If either of you goes after the perp by yourself, you (or they) will pick up the whole tab, and you (or they) get the whole award (if any).

Marvel promises to return your art to you. (This is better than Jack Kirby got.)

The Escape Clause: If Marvel leaves your material out of print for five years, and declines to put it back in print within 6 months of you telling them to use it or lose it, the contract terminates. You get all your rights of ownership back, including the right to buy up (at a discount) any leftover copies and production materials they have. However if Marvel has any active licencing contracts at that time (e.g. action figures in production, a movie sequel optioned) those will remain in effect until they expire of natural causes.

CLOSING THOUGHTS:

As I predicted in the original version of this page (before I'd seen the contract), this does leave your property genuinely "creator owned". What it doesn't do is keep it "creator controlled". That's going to be the main stumbling block that will persuade creators not to sign it. That is, after all, one of the main reasons creators like to own their work: to maintain complete control of it. This contract is, in very many ways, like doing a Work Made For Hire project for Marvel, but with a provision for "unscrambling the eggs" (as Bill Jemas once put it) to restore most of your rights as a creator down the line. So it's a half-step "up" from the WMFH contract with the New Character agreement attached.

Originally I listed a bunch of things I thought Marvel might want in this contract, and sure enough: most of them are there. The right to replace you as writer and/or artist took me by surprise, but in retrospect it's the logical conclusion of their right to refuse publication, mixed with their interest in having the work finished. I haven't seen enough contracts used elsewhere in the comics industry to know how common some of these clauses are, but I'm sure they're more common than one would like to think, because I've heard some horror stories over the years. And this is Marvel, a company which frankly sees little point to creator ownership... because, let's face it: they're Marvel. They're one of the two biggest comics publishers in North America, so they have no shortage of talent to work with. And their biggest source of revenue at present is from licencing their intellectual property, not from printing and selling books. While they've been less-than-chatty about the contents of this contract, they've been pretty up-front about what it would take to interest them in a creator-owned series (lots of shared revenue, and substantial control), so I guess it shouldn't be surprising.

So now that I've earned the wrath of everyone at Marvel by releasing this information (and probably torpedoed any chance of my Epic proposals being approved in the process), I'm going to earn the contempt of my fellow creator-ownership advocates by suggesting that for some people, this contract might be worth it, and what seems like a rip-off could work to your advantage. First of all, just as there are people who wouldn't mind doing Work Made For Hire using existing Marvel characters (in which they will have no ownership or financial rights), or who'd be willing to sell their characters under WMFH terms (in which they have no ownership and some small financial benefits), there are people who wouldn't mind entering into a contract which is in many respects like WMFH, but with a better potential for income, and an eventual escape clause. Second, the fact that Marvel "participates" so heavily in the profits, especially from licencing deals they can hold onto for years to come, means they have a real incentive to market your property, which a company with no such financial interest (such as Image) doesn't even pretend to be interested in doing. If your idea is something that Hollywood and the popcorn-munching masses would go ga-ga over, but you have no hope of selling it to them on your own, there's a chance this could be a very good deal for you. On the other hand, if these are your precious characters and a story dear to your soul that you just want to express words and pictures, then this probably isn't a good deal for you at all.

Marvel isn't evil for offering this contract to people (assuming they actually do offer it). No one's forcing anyone to sign it, and it's not the only game in town. But Marvel certainly isn't the patron saint of aspiring creators. And I wish they'd take a chance at offering creators greater control, because that's how to foster the kind of creativity that will really grow the comics market. It's why Image was founded in the first place, it's done pretty well for Vertigo, and it's the bread and butter of many other publishers. But anyway... it comes down to what I've been saying since I started this site back in May: Understand what you're being asked to sign, and decide if you can live with it. As I wrote so poetically in the original version of this page: "Only your lawyer can tell you what's at stake. Only your heart can tell you if it's worth it." If it is, go for it. If not, find some other way to publish your story.

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© copyright 2003, Todd VerBeek
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