Marvel's "Creator-Owned" contract for Epic Comics

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.

PREVIEW: This contract isn't available to the public. I can guarantee that it won't be as creator-friendly as, say, Image's almost-no-strings-attached terms. On the other hand, you'd be able to keep more than the "Work Made For Hire" contract leaves you.

Epic editor Stephanie Moore has said that any stories set in the Marvel Universe must be done as Work Made For Hire, not under Creator-Owned terms. 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 "interest" in the character (probably just a cut of the royalties, and maybe some creative input on future uses), but still as WMFH. If that's what you're doing, go read the WMFH contract instead.

Marvel is telling writers who want to submit proposals that are not Work Made For Hire, to just leave that contract out, and they'll send you the Creator-Owned contract if they like your story. While this sounds a little fishy, 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 initials stages without one. If after sending your script you change your mind about working with Marvel, or you find someone else to publish it, or you decide you don't like the terms... you can just walk away without signing. You might even be able to negotiate on one or two terms (but don't push it unless it's really a make-or-break issue for you, because they won't like making exceptions). Marvel can't take possession of your non-Marvel-U story without your consent.

Even after they've accepted your proposal Marvel will want the right to refuse publication of anything that doesn't meet their standards and send it back asking for changes. After all, you can't expect them to give you free reign to fill your book with legally "obscene" material, DC-owned and Disney-owned characters, Spidey buggering Wolvie, and threats against the life of the President of the U.S. (Though I'm sure such a book would sell a fair number of copies. {smile}) I'm sure the contract will give them this right.

This contract will almost certainly include some mechanism for you to take your characters and plot (and probably the art you've created or commissioned for it), and go somewhere else with them... "unscrambling the eggs" as Marvel exec Bill Jemas once put it. That's fundamental to creator ownership. But it won't be as simple as telling Marvel to shove off, and then resoliciting #1 or soliciting the next issue yourself in the next Previews catalog. I've heard horror stories about creators trying to get the rights to their "creator owned" material back from other publishers. Mr. Bill's metaphor is apt.

Marvel is going to want something from you in exchange for publishing, promoting, and distributing your work. That could mean any number of these possibilities:

exclusive rights to the material as long as they're publishing it (this is nearly certain),
a "non-compete" clause that prevents you from publishing it elsewhere for a certain period of time,
a commitment from you to a minimum number of issues,
a refund of some of the money they've previously paid you if you leave "early",
a perpetual licence for them to do reprints,
the right to make unilateral changes in the material to suit their publishing standards (e.g. nudity, language),
ownership of the trademarks (e.g. the series title, logo, advertising tag lines),
first dibs on any sequels (sometimes called "right of first refusal"),
the right to negotiate on your behalf and/or get a share in any other-media licensing,
one credible source says they'll want 60% of the profits,
etc.

None of these conditions would mean that it's no longer "creator owned", so any of them are theoretically possible. I believe each of them is legally enforceable if you agree to it. Some are less likely than others, of course. Only a copy of the contract will tell you what they actually want. Only your lawyer can tell you what's at stake. Only your heart can tell you if it's worth it.

Another interesting possibility for creators who want to own their work is Dark Horse's "New Recruits" program.

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© copyright 2003, Todd VerBeek
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