An Un-Terrific Contract

Some screenshots have been going around Comic Twitter discussing a contract and supporting documents alleged to belong to Terrific Productions.  Occasionally, I dip my toes into Comic Twitter to see the latest discussions, so I’ve seen the discourse around the company and its practices.  I have no idea if the documents that are going around are authentic or not, but after seeing them I definitely had some opinions as to their professionalism and legality, too long to put into a twitter thread.  So I collected the pictures I could find and have assembled my thoughts here.

First, an important note, while I am an attorney I am not your attorney.  So this is not specific legal advice for you if you are looking at this contract.  But if you are looking at a contract with similar or identical language, then I’d advise you to get some legal representation to confirm what I’m saying.

Second, while I don’t do comic book development contracts for a living, I have been a lawyer for over 20 years (damn, I’m old), I’ve been an adjunct law professor, I’ve written a book on social media law, and I’ve written a comic book.  I even put out an open-source contract for comic book writers to use when hiring their creative team for developing their own title.  I don’t claim to be an expert in this field, I just have some experience.

Third, as I noted, I have no way to authenticate these documents.  They could be real, they could be fake–either way, you wouldn’t want to sign them or probably be affiliated with someone who gives them to you.

All right, let’s get to it.  These first five were found in a tweet and replies by @MarkBrooksArt:

  • Probably not a contract but a discussion of terms.
  • Not a great use of grammar, but if it isn’t in a contract then it’s less concerning.
  • I’d be concerned without a definition of “net profits.”  That’s an easy way to not get anything.
  • I’ve read that third paragraph too many times to count and I still have no idea what it’s saying.
  • The rest seems to be within an ongoing discussion of terms so perhaps it makes more sense to the recipient.

  • Exclusivity should always be defined.  Perhaps it was in the conversation (again, this seems to be part of a conversation rather than a contract), but is this exclusivity for all work?  All work at or above $120 a page?
  • At least in the contract, if not in the conversation, I’d want to know what “promote your name” means exactly.
  • There’s something about third paragraphs with this author–again here’s a third paragraph I cannot understand at all.

  • Side note: I love it when legal discussions have a FAQ.  And by love, I mean they’re idiotic.  If you’re actually getting so many questions that you need a FAQ for your contract, then CHANGE YOUR DAMN CONTRACT.
  • If this is supposed to make creators feel more assured, it should have more details (and, like I said, be in the contract).  Mention how they’ll be paid (method), will an invoice be required, etc.
  • The page counts switch between 20 and 16 pages, which makes me nervous.  Details matter.
  • The strange use of punctuation is also concerning.  Some questions don’t end in question marks, some statements do end in question marks.
  • I don’t understand why Exclusive is the only word that appears to be capitalized out of context.
  • There’s more discussion about investing money in promoting someone but no mention of what that is–there should be detail here.
  • Also, the idea that promoting someone attached to a book this person is publishing should be treated as value to the creator is a bit of bullshit for justifying exclusivity.  Think this person is talented and you want to make sure you get a lot of value?  Then sign them up for a lot of work and be really good to them.  Exclusivity just means you think you have leverage and you’re afraid someone will treat them better.
  • If enough people ask about royalties that you put it in a FAQ then cough up some numbers.

  • Question 7 has 3 or 4 errors.  Strong start to this page.
  • Answer 7 should be read in a Borat voice.  Not that it will make more sense, but at least you’ll be entertained during the idiocy on display.
  • Question 8, I do not believe that they have been frequently asked “What if Wish to increase my page advance ?”  I do not believe they have been asked this question even once.  I believe even if Boris and Fearless Leader came to life like in that Rocky & Bullwinkle movie and they wanted to write you a comic book, they would still come up with a better phrasing for this question.
  • Answer 8 just gives an example of you selling twice as many books as they thought they will give you more.  Might be 50 cents more, might be a dollar.  But it’s more.
  • Question 9 has decided to replace a question mark with a period and a capital U.  For reasons.
  • The control over sketches seems problematic to me.  It should probably be defined within that Exclusivity portion of the contract, but if a publisher is getting a book done then why should what the artist does with their own time matter at all?  Why should the publisher get a percentage of the new sketches–shouldn’t they just be happy for the extra exposure and word of mouth the artist is getting that will help sell the book?  Maybe this is something other publishers do–I’m not an artist so I have no clue–but it feels wrong.

  • This looks more like an actual excerpt from a contract, but again I have no way of knowing.
  • Wow, paragraph 7 is a mess.
  • First, is this a 50% modifier for total rate, advance, royalties, etc.?  Things that are unclear like this will always be used by the drafter in their favor (even though in court it will be construed against them, but by then you’ve paid a lot of legal fees and you don’t care anymore).
  • 90% vaccination as defined by whom?  90% of what–the total population of people who can receive the vaccine or do you include people who cannot receive it?
  • There’s some interesting legal arguments about making a condition precedent upon a thing that doesn’t even exist yet, but I’ll leave that for other law nerds to discuss with me.
  • Who determines if 2,500 direct comic retailer stores are open full-time?  Are there even that many stores?  What about after Covid–will there be that many?
  • I’m also concerned that “profits” isn’t defined for how the additional money will be accrued.  This is a contract and there should be definitions for profits, specifically the difference between gross and net if there are any deductions from the revenue stream (spoiler: there are always deductions from the revenue stream).
  • The grammar and spacing errors are more alarming here since this appears to be a real contract.  Clarity matters.  Professionalism matters.
  • The last sentence of section 7 is trying to capture too many ideas.  If there is an NDA or other section that covers non-disparagement, then put that somewhere else.  You don’t put it in a special Covid section.  (Also, that should be an addendum, not a middle section of your contract, but that’s an aside.)
  • How long does the artist have to work on signed special editions (extra work) to get paid for their original work? There’s no limit here.
  • Section 8 is a hot mess.  You don’t write a contract saying that someone understands a term–you say what the term is.  You define the important terms.  Who determines when a kill fee is triggered?  What happens with the original work in terms of rights/reversions if a project is killed?
  • You should always be consistent with defined terms.  Sometimes they are Capitalized, other times they are in ALL CAPS.  But they should be the same.  Using two different ways to write Discloser in section 9 is problematic.  Are they supposed to mean the same thing or not?
  • Math matters.  70% plus 33% is over 100%.  Percentages should not have an “up to” language unless the scale is defined.  Contracts are about certainty, not a platform for future negotiations.

These next two pictures came from a @ZackDavisson tweet.

  • Again, contracts should have some certainty.  Understandable if they don’t know exactly how many pages to be done, but there should be an upper limit.
  • Net proceeds should be a defined term so everyone knows what’s going to be deducted from the gross proceeds.
  • The language around deciding not to sell pages is odd.  So the pages will never be sold or is the publisher just holding off on selling them?  The language around calculating the rate suggests the latter, but the original language implies the former.
  • The language around offsetting business losses against selling specific pages is exactly why net proceeds/profits should be defined.  It is, also, complete bull.  Unprofitable is also not defined, so I’m guessing that no graphic novel makes a profit on their first publication.

  • TYPOS MATTER!  “paging” should be “paying”
  • If the publisher has control of the pages, they should be responsible for damage/destruction.
  • Timely should be defined.  Method of sending (packaging, method, carrier, insurance) should be defined.
  • This isn’t necessarily a problem with the drafting language, but the penalty for not sending artwork coupled with the total lack of control of the pages or their ability to sell is incredibly unfair to the artists.
  • “Net sales” should be defined.  And I’m getting even more concerned that a concept like “net profits” has had multiple terms applied to it.
  • Timing of signing is problematic–what if the request comes in before the signable product is delivered?
  • How many conventions is the artist supposed to attend?  At whose expense?
  • What kind of promotion is the artist supposed to do of the publisher website?  Also, why should they do that when your FAQs talked about how the publisher actually has to SPEND MONEY to develop the artist (and, one would presume, their fan base).
  • As for that last bit, let me be as gentle as possible with this term: FUCK THIS TERM. Sorry for using Latin.  It’s incredibly common to have language that deals with resolving disputes, but it should be its own term, it should lay out a process for resolving the issues, and it should not be this draconian bullshit of “even attempting to resolve a dispute will hurt us so much that you don’t get any more money.”  No no no no no.  No.
  • “Dos” should be spelled “does”.
  • “Magnitude” of damages is not a thing.

These are just my initial thoughts since I’m doing this for free.  Rest assured if a deal like this came to me in a professional capacity, I would have more to say.  None of it good for the drafter.  And I haven’t even seen the full contract, again assuming this is actually part of a real contract.  I hope it isn’t, but I fear it is.  Comic book creators should absolutely stay away from a contract like this.

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