Today we’re going to go over a dirty publisher trick: the non-compete clause.

A non compete clause is an agreement or covenant no to compete:

…a term used in contract law under which one party (usually an employee) agrees to not pursue a similar profession or trade in competition against another party (usually the employer). As a contract provision, a CNC is bound by traditional contract requirements including the consideration doctrine. The use of such clauses is premised on the possibility that upon their termination or resignation, an employee might begin working for a competitor or starting a business, and gain competitive advantage by abusing confidential information about their former employer’s operations or trade secrets, or sensitive information such as customer/client lists, business practices, upcoming products, and marketing plans.

So how does that work with a freelancer?

For the most part it doesn’t, which is why when you see one of these stink bombs in your freelancer agreement, you really need to give it a closer look.

I’ve had a number of young creators come to me over the years who were so intimidated by this clause in their contracts that the creators had turned down work repeatedly for fear of violating this agreement – even after they were repeatedly told it was not legal! Some have even gone so far as to ask the client’s permission to take on other work! In some cases, the client has refused to let the creators take many jobs, even though the ex-client had not hired the creators in five years or more.

Non-compete clauses are usually intended for employees who have access to confidential information which could harm their former employer’s business. The force of the clause is not only limited by geographical area, but time and scope, and the court must find that those considerations are reasonable.

For example, if you worked at a pizza joint and had access to the amazing secret sauce recipe, you could be restricted from opening up a shop next week right across the street and selling pizza using that recipe.

Here’s a letter I sent to a freelancer who inquired about a client who was trying to stop them from working for other clients four years after they had freelanced for him. The freelance job lasted only a few weeks. The client wanted to enforce the non-compete clause up to seven years. It’s also a matter of public record that this client does not create much of his own work.

You had no access to confidential information, you cannot reveal any trade secrets of his. You did not work in his office. You did not have access to his private files.

And BTW: if he wants to enforce the non-compete clause, he may then be required to have TREATED you as an employee and therefore, be liable for your taxes and benefits.

This client wanted to restrict freelancers from working on ANYTHING that was in the same style as anything he had ever published, regardless of whether the freelancer had worked on those projects or not!

If the artist worked on Book A, and he published Book B, he wanted to keep freelancers who worked on Book A from working on anything like Book B, even if Book B had been published ten years before the freelancer had ever worked with the client!

He also wanted to restrict freelancers from appearing in public, on television, teaching, lecturing, and a long list of other things that freelancers do as a matter of course to supplement their art income!

So not only could they not paint or draw in the same style as anything he had published, they could not talk to people about their work! At least, not without his permission, which he often refused to grant. It’s a little hard not to work on books in the same style when the style is manga art, to which this client had no business staking a personal claim.

It’s not like this white guy invented manga or anything.

This clause effectively put some freelancers out of work, because they simply did not know that the non-compete clause they had signed was illegal.

Ladies and gentlemen, I beg you. Please get good legal representation for yourselves and never, ever listen to legal representatives for your client. They are paid to represent your client, not you.

Yes, the client’s lawyer will lie to you. They will drop things into that contract which are unenforceable by law. They will do whatever they have to do to get you to sign something to their client’s advantage. It’s their job.

Their lawyer is paid to tell you whatever they think they can get away with. Your lawyer is paid to tell you what your rights are.

You can get a low cost attorney through the Volunteer Lawyers for the Arts, and if you don’t qualify for free assistance, they can direct you to an attorney who can help you. If you are in serious need of legal aid, try clicking on my LEGAL tab for more info, or contact me directly. I will see what I can do to help you.

c

Most of these tips are culled from a pamphlet I produced years ago titled 101 Things Your Publisher Doesn’t Want You to Know. Dozens of creators provided handy contract and business tips for the education and protection of their fellow pros.

Illustrator William Stout recommended that you make sure you get a purchase order number for every assignment. If there is a dispute over payment, the court will likely ask you to provide a purchase order number for the assignment to prove the client contracted you.

Usually, comic book companies have purchase order numbers preprinted on their standard invoices. If there is no standard invoice available, request that the publisher follow up on any verbal agreement with a purchase order number (PO#) for the job.

If your publisher fails to pay you, that PO # will be the first thing the judge asks for.

Remember, you are an independent contractor. For whatever reason, many creators fail to follow through with the simplest business paperwork, especially with small press clients who seem like old friends, they’re so accessible. Sometimes they are friends, and those friendships sour. Don’t let a verbal agreement be all you have to prove someone was supposed to pay you.

Contracts aren’t for the good times, they are for the bad times. It’s simplicity itself to dash off a quick letter of agreement via email.

And if you have made this mistake yourself, don’t feel bad. I have been badly burned in the past as well to the tune of thousands of bucks.

If anyone ought to know better, it’s me.

Ever heard that old saying that good fences make good neighbors?

Think of your quick letter with a PO# as a good fence. Professional clients will respect you for it. And unprofessional clients who avoid putting agreements in writing should be avoided at all costs. I don’t care how well you think you knew them.

c

If you’ve never been to this sit before, a quick introduction.

My name is Colleen Doran, and I am a cartoonist and illustrator. I’ve also worked as a creator rights advocate, and have written many articles about the publishing business, primarily focused on the comics industry. I’ve illustrated the work of Neil Gaiman, Clive Barker, Warren Ellis, J Michael Straczynski, and Anne Rice, and am currently working on several original graphic novels for DC Comics’ Vertigo division and Houghton Mifflin.

This series of articles, written nearly ten years ago on my old message board, starts off a little slow. But stick with it for contract tips, insider info, and guest appearances from comics notables such as Frank Miller. And more than a few laughs, because at the end, it goes from supremely awful to sublimely ridiculous. The posts have been updated with more commentary about bad agents, bad book packagers, and, of course, other Very Bad Publishers.

The publisher I wrote about in the original series was the long defunct Starblaze. Initially, I avoided naming the company. However, some folks quickly recognized the culprit, and all is a matter of public record anyway, as you will see when you get to the legal papers, a suit which made state case law.

No matter how bad this series gets, keep in mind it’s the SECOND worst publisher I ever worked for. After these two disasters, every other publisher I have ever encountered seemed like a breeze, a fragrant lawn, and a tall glass of something cool.

I’ve also had no contact with either company since 1989, except for…well, keep reading.

Enjoy.

So, here’s one thing I learned from my unhappy experiences with a woman in publishing (no longer in publishing, as far as I know) who shall be known only as The Woman. An editor and a fledgling writer, she had approached me about not only publishing A Distant Soil, but illustrating her GN project as well:

Small presses are very, very concerned about size issues, in the same way that some guys can get insecure about size when they are exposed to the big guys in the bathroom.

They would rather not appear small and vulnerable, even though that is what they actually are. They sometimes try to exploit their little guy status by passing themselves off as friendly mom and pop companies who will embrace you with their warmth and serve you cookies besides. But in the end, most small presses have one very important thing in common with most big publishers:

They are out to make a buck.

If they can’t woo you with the big money that big companies can provide, then they will try to compensate by giving you a better contract than you might be able to wrangle at a major publishing house.

Of course, if you are a newbie or you don’t have a particularly good sales track record on previously published projects, you will still get a crappy contract.

When wooing you away from a project at another publisher, they will often try to inflate their sales records and ability to promote your project. If there is any chance that you have something that might make them really good money, the sales record and promises for promotion may stray into the realm of fiction.

When I was a tot working in the 1980’s, the great unknown realm of publishing for comics was in the bookstore market, also known as the retail trade. If you were not doing superhero comics, you were probably getting a lukewarm response to your work by retailers and fans in the direct market, which is where most comics and graphic novels were sold.

The retail trade allows for returns of unsold product. It is a risky thing to accept returns on unsold product, but it’s a venue everyone in comics wanted to crack because there were tens of thousands of potential outlets for graphic novels that the comic book industry could not reach. The growth potential was unlimited, but no one could really seem to break out of the direct market paradigm.

The direct market allowed for comics and graphic novels to be sold in comic and gaming specialty shops to a very limited market that was, at the time, about 3,000 outlets. Later, it inflated to 10,000 outlets, but is now back down to about 3,000 outlets.

If a direct market retailer does not sell a book, too bad. He cannot return it for credit. However, the discount at which he orders the book from the distributor would be significantly higher then the discount a retail trade bookstore might get to order the same product – to reflect the greater risk of carrying a book he could not return if it went unsold.

OK. So, back in the day, I was pretty certain that my audience for A Distant Soil was somewhere out there in the retail trade, and the comics shops would always find my work to have limited appeal. I was anxious to find an outlet that would get me into retail bookstores after I left my first publisher.

I had several publishers approach me about picking up A Distant Soil including Marvel’s Epic division, and the fledgling Dark Horse.

But there was one publisher willing to promise me what the others would not: retail trade sales.

In fact, they promoted their company as being the biggest seller of graphic novels in the world, and the first to do it besides.

This was a blatant falsehood.

(more…)

Hit the Very Bad Publishers Tab for previous installments.

This series of posts was written nearly ten years ago, and while it may sound as if I’ve spent my every waking moment in publishing running from Duddly Dastardly, I want to emphasize that out of a career that has lasted more than two decades, I have only worked for a small handful of bad publishers. Unfortunately, they were VERY bad publishers. And bad publishers seek out young creators, effectively killing the enthusiasm and drive of most of them.

The upside: none of my Very Bad Publishers is around in comics today to spread bad mojo. A couple of them are still in business, but not in the business of publishing comics as they once did, and it is unlikely you will ever work with them or anyone associated with them.

OK, on to the read. Here’s what I learned from some very bad publishers.

Sometimes you’re the pioneer and sometimes you’re the canary in the coal mine.

Being the first mover in a new market can be a real advantage. I’ve been on the first mover end of a lot of comics industry events: the black and white boom of the 1980’s, the self publishing boom, the independent press, yadda yadda.

While being a pioneer gives you the opportunity to scope out a new arena and experience explosive growth in a market without much competition, pioneering anything is high risk. You experience the explosive growth before you can build up a back end plan to minimize risk. And since you start off with little or no competition, you may not be prepared the day the competition shows up.

Being the first mover gets you the new territory, but there’s no guarantee you get to keep it.

For example, lots of early US manga pioneers are sitting around with their mouths hanging open because they helped open a whole new market they are no longer in a position to take advantage of (which is why second mover advantage may be even more important than first mover advantage: you get to learn from your predecessor’s mistakes.)

Almost everyone I knew (including me) who self published experienced a blissful period where we managed to move a kajillion copies of comics one day that we couldn’t give away the next year. When there were 7 self publishers, it was easy, but when there were 100 of them, we had a problem.

(more…)

Many professional artists – including cartoonists whose names you know well – have day jobs. And this post will give you some idea why.

Commercial artists don’t get a lot of commerce. Last time I looked, the average income for a professional artist was only about $15,000.

These events happened between 1986 and 1989. Click HERE for previous installments. First posted about ten years ago, I’ve tried to edit for clarity and spelling.

I pondered weak and weary whether to dredge all this stuff up again, but I am frequently contacted by creators who have signed contracts that had the same clauses in them that mine did 20 years ago.

“Creator owned” contracts and the companies that tout them may leave with you a copyright (or a portion thereof) and nothing else. “Creator owned” for many is not about fairness, or making good books; it’s a marketing tool. And you, the creator, are buying it.

The comics industry is everything you ever heard about Motown, only without the glitter

The good news: remember, these sad events took place 20 years ago. Now I have great work, good friends, terrific publishers, a comfortable studio, wonderful books to work on, and sometimes…every once in awhile…OK, there’s even a little glitter after all.

Look out for yourself, and don’t give up hope.

Now, on to today’s nitty gritty.

Creative Accounting

In the old days of comics, the work for hire contract was simple. Working for Marvel meant you got a little stamp on your check that stated Marvel’s rights to your work, or you got a payment voucher that you signed when you turned in your pages. Two weeks later, you got a check.

Beyond your initial page rate you were unlikely to see any more money on your book, nor did you expect any. A decent page rate at a major publisher could be solid money for an illustrator. At the time, The Graphic Artists Guild Handbook of Pricing and Ethical Guidelines stated that the average American illustrator pulled in less than $10,000 a year. So a decent comic book artist who could pull in $40,000 or more a year was doing better than OK. And $40,000 went a lot farther in the 1980’s than it does now.

The simplicity of comic book agreements that reserved all publishing rights for the publisher in exchange for a guarantee of upfront income left most comic artists unprepared for the complexity of the retail trade publishing paradigm. When I got into comics, publishers were only just starting to pay royalty rates!

In standard book publishing, no page rates were paid. Instead, an advance fee was paid against royalties; the author/artist gets a flat amount of money up front that is deducted from later book sales.

Say you agree to do a book for $3,000. If the book sells a lot of copies, whee! You get more money. If not, $3,000 is all you will ever see. If you spent six months working on your book baby, you just worked six months for $3,000.

(more…)