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.
OVERVIEW: This contract is signed by "you", the writer making the proposal, and is signed by Marvel when/if they accept that proposal. At that point, it goes into effect. It establishes the terms under which you and your team will do this work for Marvel.
1. You have to actually do the work. It has to be good enough for publication and it has to be done on time. Marvel can fire you or you can quit for any reason - including "stupid" ones - but if so, either one of you has to give the other a month's notice. So if you're doing a monthly, that effectively means you have to finish the issue you're working on, even after they've fired you or after you tell them "I quit." (If they fire you for a "good" reason based on the contract - like failing to live up to this paragraph, or paragraph 7 - of if you quit for a "good" reason - like they fail to pay you - the 30-day-notice may not apply.) By the way, if you quit or get fired, Marvel can keep the series going without you, because...
2.a. Whatever you create for Marvel becomes their property.
2.b. This paragraph tries to establish that whatever you create for Marvel never was your property, because you created it as "work made for hire" (aka WMFH). Exhibit A spells this concept out more explicitly, but the gist of WMFH is that the legal "creator" of the work is the company, and you're just one of the cogs in the creative machinery of that company, with no ownership of the work you do for them. Legally, they could even deny that you had anything to do with it (the "moral rights" bit). In case this paragraph doesn't stand up in court, Marvel will still enforce the previous paragraph instead, which is the next best thing for them. There's an exception for material you create on your own and then try to sell as a finished product to Marvel, but for a proposal like this, once Marvel tells you "yeah, go ahead and create that book for us" and the check clears, whatever you create for it is - and always has been, and always will be - theirs.
2.c. A "natural person" is any individual, regardless of whether you're a clone, android, temporal anomaly, spawn of the devil, etc. The alternative is that you're a legal entity, such as a partnership or corporation (which our legal system treats as if it were a person, with civil rights and so on). If you're creating something for Marvel, and doing it collectively as a studio or whatever, you have to apply the terms from the previous two paragraphs to your employees and subcontractors. So you can't try to trick Marvel out of ownership by putting a disposable shell company between the actual creators and the publisher. Exhibit A appears to be one of Marvel's standard tools for accomplishing this.
2.d. Once Marvel buys it, you can't take any part of this script and re-use it elsewhere. If they had rejected your Squadron Supreme story, you could rework it into a JLA story and sell it to DC, or publish it yourself with your own JLA knock-offs. But they bought it, so you can't. This includes any new characters you introduced. It especially includes any existing Marvel characters or other bits of MU continuity you included. If Marvel pays you for it, but then decides not to publish it... well, you got the Fortune (such as it is) - but not the Fame - for your brilliant story. Tough.
2.e. Since Marvel owns it, they can do what they want with it. That doesn't mean they will make changes, but it means they can. You have no say about whether it gets used for a movie or game or novel or Underoos, or what happens with it if it does, because it's not yours.
2.f. And don't expect to get paid for any other use of your material, either. (See paragraph 4.a for more about this.) In case this hasn't sunk in yet: It's Marvel's property.
2.g. You're giving Marvel the right to use your name and maybe some basic info about you to promote this book, but not for anything else. A no-brainer clause for you, but if you were, say, King Fahd of Saudia Arabia or AOL/TW CEO Richard Parsons or anyone with a professional reputation to uphold, you might not want to agree to this. Practically speaking, this means putting your name on the cover, in the inside credits, and in the solicitation, and maybe a press release to the comics news sites, explaining that you're a 40-year-old comics-and-collectibles-shop owner in Cornfield, Nebraska. If you're a 19-year-old hottie they might include a photo in the press release to get readers' attention.
3. For the record: You have to get your work to Epic; they aren't going to come get it.
4.a. Marvel will pay you $500 for all of this. They'll also pay you the amount is stated in the Packaging contract, which will spell out the per-issue payments, and the bonuses based on sales. But that ain't in writing here, so it hasn't been locked in until you get the Packaging contract. They've also talked vaguely about some kind of bonus for anything that gets licenced to other media, and that would have to be in that other contract as well; if it's not, figure that you're not getting it. (And understand in any case that if your Dr. Obscure revival inspires someone in Hollywood to make a movie about him, it's still just Marvel's character they're licencing, not "your" story; they'll write their own screenplay, thanks. You won't get any screen credit, and probably not a cent, even if some of your ideas show up on screen. Just ask Frank Miller or Chris Claremont, whose original characters and stories were used in the movies DareDevil and X2.)
4.b. Marvel can register their legal ownership of what you create, and you're going to help them.
4.c. The only possible exception are new characters, which are defined and covered by a document Marvel calls a "New Character agreement". Note: Characters related to existing Marvel characters (such as a new team-member for the X-Men, or Iron Man's cousin Iron Girl) do not qualify as "new characters" for these purposes; it has to be someone all-new, presumably capable of supporting their own movie deal. If your story uses any of your own characters, especially ones that you care about, don't make any assumptions about what that agreement will say; ask to read it before you sign this document. Reading betweent he lines, it sounds like it'll give you a percentage for any licencing deals made for the character, but that's just imprecise guesswork. Also, see my comments about paragraph 13.a.
4.d. Marvel will pay you directly. If you ask to have the money paid to someone else, you're still bound by the contract, so you can't weasel out of it with that trick either.
5. You can't give Marvel anything that's owned (even just a part) by someone else. It has to be composed entirely of Marvel's property (stuff from the Marvel U), your own property (an original story and/or characters), and/or public property (such as Tom Sawyer or King Arthur). So if there's a problem with the legal rights to the content down the road, it's your fault.
6. Standard butt-covering clause. This is where Marvel denies any liability for anything else that goes wrong because of you. It's your fault. Got it?
7. You might learn stuff about Marvel that they don't want people to know, such as Bill Jemas' cell-phone number, their plans to reveal that Ultimate Spidey is a mutant clone of Aunt May, an impending purchase by Tokyopop, or the fact that their letterers are locked in a closet and have to work with quill pens and the blood of any fanboys who show up wanting to see "the bullpen". Leaking this info can get you fired and even sued for breach of contract. You have to keep your mouth shut even after you stop working for them, taking the sad plight of those letterers to your grave. (No one would care about the blood-drained fanboys.)
8. You'll do whatever Marvel requires you to do to keep your... I mean Marvel's legal property from falling into the hands of other people. Including yours.
9. If you have anything important to say to Marvel about your professional relationship (such as "I quit" or "I'm going to sue you for all you're worth"), say it to the right people. They promise to do the same for you.
10. Marvel can sell you (at least the part of you that you've signed away with this contract) and your work to someone else. So if Archie Comics wants to publish your Punisher mini, and Marvel agrees, you're writing for Archie now. (Hey, don't laugh. They did an actual Archie/Punisher crossover several years ago.)
11. "We may be sleeping together, but we're not married. So don't try to sign any contracts on our behalf, and don't even think about asking for the house or custody of the kids when we split up."
12. You may be doing work-made-for-hire, but that doesn't make you a legal employee. You're self-employed, and personally responsible for everything that an actual employer would take care of, like benefits or taxes.
13.a. This contract is binding. Nothing else Marvel has promised (or that you've promised them) matters because it's not included here. The per-issue compensation and possible bonuses in the Packaging contract mentioned in paragraph 4.a are the only exception. Note: They didn't allow here for the "new character policy" mentioned in paragraph 4.c. I'm not sure what that indicates, but it could mean that it's just a policy (subject to change at Marvel's discretion) and not a binding contractural agreement. So don't assume you'll get any actual legal rights from it.
13.b. You and Marvel both need to sign a new contract to change any of this.
13.c. A standard "bathwater" provision to prevent any specific problem with this contract from wrecking the whole thing. If the Supreme Court says Marvel can't do what they wrote in the second half of the third setence of paragraph 16.q the rest of 16.q still stands, along with the rest of the contract.
13.d. When Sony buys Marvel, you'll be working for them. When you die from joy at seeing your by-line in a Marvel comic, your spouse and kids (who are we kidding? make that "your parents") will be entitled to... well, whatever this contract entitles you to.
14. Marvel lives in the Big Apple and they're not about to come out to Cornfield, Nebraska for a trial. Besides, they know how the New York courts will interpret the law and they'd rather take their chances with that, instead of letting some yahoo in California or Red China or Andorra apply their kooky local laws to it.
Exhibit A: This document appears to be what you'd use if Marvel buys your proposal and you need to assemble a "team" to produce the goods. Unless that happens, ignore this part of the PDF file. Because you (the writer who proposed it) are the one Marvel is paying, you're responsible for getting the artists working for you to agree that this is "work made for hire" like in paragraph 2.b, and you all agree not to challenge that. In fact, it says that if anyone involved did have any problem with that, they wouldn't even be working on this project... which, between you and me, is an important point for you to consider. This section uses the same kind of terminology you'd use for cut-to-order lumber or custom auto parts, to reinforce the notion that you're not really creating anything; you're supplying mere components under Marvel's supervision, for their editorial staff to use to create a copyright-worthy work of literature/art.
Exhibit B: If you want your checks mailed directly to your silver-haired mother back in Smallville, they need it in writing. Use this form.
Most of this contract is about limiting your rights, with a lot less language dedicated to limiting Marvel's. This is because Marvel wrote it, and they figure you need them more than they need you; there are more writers out there than there are publishers with rights to the Marvel Universe. It does give you some specific rights, which are good to know. Go through each item and ask yourself if this is something you're willing to give up. If you get to the end and the answer is still "yes", then send in your pitch. And if the terms of the contract mentioned in paragraph 4.a turn out to be acceptable, then go for it!
If you can't agree to the WMFH contract, you might consider instead pitching the story (without Marvel characters or MU elements) to Epic as a creator-owned proposal. That contract isn't all sunshine and roses for the creator either, and your chances of getting offered it are very slim, but it's a better deal if you can get it. Or take the basic story (again, without Marvel elements) elsewhere. I've never seen the WMFH contracts Marvel gives to creators working for Marvel proper (i.e. not Epic), but (aside from the pay scale) I doubt they're substantially better, so I wouldn't bother trying to pitch to those editors for better terms. DC's WMFH contracts are probably about the same. That's the price of getting to play with someone else's toys. In any case, if you still have your heart set on using Marvel's characters, and think you have real talent, you may be better off "breaking in" the traditional way, by getting your work in print through other routes (such as self-publishing with your own characters) and negotiating a deal with Marvel from that position, which might give you a little better leverage. Or not.
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© copyright 2003, Todd VerBeek
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