Selling Your Story – Peaks and Pitfalls of Publishing Contracts
Points to consider when deciding if a Publisher is the right fit for you.
Landing a publishing contract is the Holy Grail for many creators who set their sights on “breaking in” to comics, and it’s understandable as to why this is the case…
It’s a big ego bump for starters. Someone external, has recognised your work as good enough to be associated with, promote and sell. In terms of logistics, publishers have established distribution and promotional tools at their disposal and should have a bigger voice than you alone to share your creation with their customer base. As an independent creator, associating yourself with something bigger can also boost your profile – Like a more positive version of joining a gang in prison (I’d imagine).
The subject of publisher relations with creators, differential deals and the fairness of agreements became the subject of debate across comics twitter recently. Voices of creators and collaborators I have a great deal of respect for came out to talk about their views on several publishers with messages of both condemnation and support. Wider spread trends led to a number of freelance workers actively sharing what they had been paid for projects. While there’s no need to pick through a debate which is easily searched, I’ve been thinking a great deal on the subject of publisher contracts. Specifically, how an independent creator can review and consider what publishers are offering more critically in the hope they secure favourable terms, or at very least don’t feel regrets down the line as items not considered at the time of signing come home to roost.
I’ve sat to write this piece in the hope it sparks more discussion and helps those working in the small press scene, which I love, ask the right questions and considering offerings from publishers who show interest in their work. Hopefully I’ve made it accessible and not hideously dull.
Before we take a step further, let’s cover a few notes and caveats here:
Who is this guy? – I’m Andy Conduit-Turner a writer and extremely small name, in all but letter count, in UK indie comic publishing. The chances are, that if we’ve not met, you’ve not heard of me.
My comics contracting experience is primarily limited to drafting my own commissioning contracts to engage with collaborators for comics I have written, and in licencing short stories which I’ve written to appear in anthologies and other mediums produced by others. At the time of writing, I have neither signed with, or been rejected by any major (or minor) comics publisher and am not providing comment on any observed content which may or may not appear in a publishing agreement from any given company.
I am, neither a qualified legal professional or literary agent. In the event any contract you ever receive for any purpose is of extreme importance, investing in the support of a qualified person with greater industry experience is of far greater value than anything you’ll read here.
Outside of comics, my professional career and other personal projects over the last decade have seen me review, interpret, question, edit and respond to countless legal agreements for a variety of purposes. This has left me with a wealth of experience in considering longer term impacts for both the purchasing and suppling parties of service agreements – I’ve spent a great deal of time having both commercial and capability-based discussions prior to contracts being signed.
This is by no means an anti-publisher piece – Regardless of where you stand on recent publishing discussions, I’ve no desire to create an Us (Creators) vs Them (Publishers) sentiment here. There are countless publishers who are passionate about sharing creator’s stories, invest significantly and add a great deal of value to both individual projects and the industry as a whole. No reputable publisher is out to trick creators or deliberately give them a raw deal. That said, as with many transactions, a publisher is a business with an end goal of limiting liability and generating revenue in both the short and long term – Depending on your ideological feelings, this isn’t necessarily an inherently evil objective, and it’s how publishers remain in business.
Your publishing contract is equally not a formality, a magnanimous offer from a friend with nothing to gain from the arrangement, and your unconditional ticket to success and acclaim. Different deals will work for different creators – A good deal to one will be an unacceptable deal for someone else and there are few terms which would be universally perfect or awful for everyone. I’d hope through these pages I can maybe help you consider your offers, ask necessary questions and make decisions you’re comfortable with for your own circumstances.
Negotiation carries risks – Especially within the sphere of indie publishing, there are a couple of truths we need to reflect on.
1. Comics are an attractive and exciting creative medium for people to get into. Especially if a publisher is welcome to unsolicited submissions, they are likely to have no shortage of people interested in publishing with them.
2. Many publishers aren’t huge organisations. In the event a member of their core team is not already a legal professional, it’s unlikely they will have a legal department on their staff to directly manage adjustments to legal documents and agreements.
What this boils down to is that, many publishers may simply not have the resources or interest in negotiating or adjusting a contract with you – There’s every chance that the offer made to you is non-negotiable. While I’d argue that the withdrawal of an offer in response to a question asked or statement challenged in good faith is indicative of the professionalism of the organisation in question, you should be prepared for the fact that being the squeaky wheel may not land you the deal you want, and may take the one you have off the table.
A Note on NDAs and Market Norms
NDAs, or Non-Disclosure Agreements are very common, as part of, or prior to contracting in many industries. They are typically used to protect (in this case publishers’) private or proprietary information concerning their business practises, contracting terms, project pipeline and pay rates private and confidential. They are a routine consideration and not indicative of any sinister goings on. In keeping with professional conduct, if you sign an NDA you should, of course, respect its conditions though here are a few considerations and questions you may ask or confirm however.
1: Is the NDA mutually beneficial – While you are agreeing not to share the details of a publisher’s business and offer outside involved parties, does the signed NDA bind the publisher to offer you the same regardless as to whether the end result is a signed publishing agreement?
Are there stated commitments to your work remaining confidential and not circulated to other outside parties during your negotiations? What commitments are made to the return / disposal of any project details or materials shared should an agreement not be finalised.
Additionally, can you expect details on deals you accept in terms of up front remuneration, percentage splits on profits and additional contract terms to remain confidential?
2: Pitch exclusivity – Are there any expectations, formal or otherwise that you should not pitch your comic elsewhere until negotiations have been concluded?
3: Your right to advice – No NDA should prevent you taking appropriate professional advice before signing any final agreement.
Rules on business competition internationally, already provide a great deal of legislation to ensure businesses to remain competitive and prevent illegal practises such as price fixing and market sharing. While market norms may dictate and guide the offers you’re likely to receive competing businesses should not mutually agree to adhere to set fees or conditions. At this point I’ll pause and note that I don’t hold the market specific professional knowledge to apply Anti-Trust and similar business competition legislation to publishing contracts – These should be forefront of a publisher’s mind when managing confidentiality of contract content.
So…With all of that now said (in painstaking detail) let’s get into this shall we
What’s in this for you?
So, you’ve pitched your book to a publisher and they’re interested in working with you? Great news! Now comes the time when you need to consider what you want to get from your potential partner, and consider, realistically, what you’ll accept. For many creators your wants and expectations may include:
Contribution to production costs. Particularly for writer led teams, an ability to appropriately pay artists, colourists, letterers, editors and other professionals make up the bulk of comic production costs even before downstream logistics such as printing, marketing and distribution come into play. Many publishers may state up front whether this is a model they can support. Initial production costs add to the overall risk and increase the volume needed to sell before profits are realised. Consider – Landing a publisher may not relieve you of the need to raise personal funds or take to Kickstarter.
Upfront royalty payments. A noble dream for some, though likely only realised by more established creators. Belief in your project will need to be high to warrant an upfront payment to the creator for a book prior to a single copy being sold Consider – Manage your expectations here, how promising is your pitch? Do you have a track record of success that offsets the risk of an upfront pay out?
Percentage Profits – This is likely to be a long-term arrangement of any publishing deal whereby the creator and the publisher acting a licence holder take an agreed % split of future profit revenue generated from the project – Profits from what exactly we’ll come to later. Consider – There’s no way around this, any additional step in the process here are going to reduce the by unit revenue you receive per each sale. By working with a publisher, the benefit to you is that they support you in, ideally, selling more copies than you would alone.
Production and logistical support – Sure, you know writing, art or whichever your creative field may be, but there’s every chance that your publisher is more familiar with the processes involved with getting your book into people’s hands. With established relationships with suppliers and retailers your publisher may also be able to optimise the per unit profit on your book sales, in addition to increasing your potential audience through supply networks and wider convention attendance.
In some cases, your publisher may also take a creative role in the process, appointing an editor, or suggesting changes to make a book more marketable in their experience – We’ll also return to this point later.
Comic Financials - Hypothetical example – Comic X
Working without a publisher
You as creator spend £2000 on the production of your comic (Art, letters, colour, whatever!) Print volumes allow you to obtain copies of your book at £2 per copy
You price your book at £5 per copy Let’s then also assume a modest spend of £200 on website, and attending some local cons, and you break even on Postage and Packing. Under this model you’ll see a profit on your creation once you sell your 734th copy of Comic X. This assumes you sell exactly all of your stock and are left with no additional copies which you’ve paid to have printed, but not yet sold. Let’s make this a tiny bit more complex and suggest that you diversify from selling physical copies online and at cons alone. You begin selling digital copies via an established digital store front at £3. You also connect with local comic retailers who agree to carry copies of your comics in store. To keep this simple and not lose the remaining 3 people this dive into maths hasn’t lost already let’s assume that your sales across all avenues equal out to 1/3 each, and once again all copies you produce will sell. The digital sales have no print cost but the digital storefront takes 50% of the sale price
The stores agree to purchase copies of your book from you for £4, creating a 33% share on profit after print costs.
Under this scenario, Comic X will officially be profitable after around 245 direct physical sales, 489 digital sales and 367 sales via stores.
Working with a publisher
Under this model, we’ll assume that you as a creator invested the same £2000 in production costs but nothing further, leaving the publisher to manage the printing along with costs for attending conventions etc.
Outside of the numbers here, your publisher is also the party taking the risk regarding the volume produced if any copies go unsold. The trade off is that your publisher will take a percentage of any profits before they reach you. For this example, let’s say you agree on 50% revenue share and receive no contribution to production costs or any upfront payment.
For argument sake, let’s assume your publisher secures the same unit costs and margins (though you’d hope they may be able to negotiate better through volume purchasing). Understanding a publisher’s direct cost with con attendance, and marketing when applied to a single book is a level of hypothetical we won’t attempt here.
Focussing on you as a creator, under the same sales methods used in the non-publisher model you would begin to see profit on your production investment of £2000 from publisher paid royalties after 445 direct sales, 889 digital sales and 667 in store sales.
After all this talk of money, the first thing to recognise is that it isn’t everything to all creators. Many will consider the long-term goals of building an audience as a pathway to bigger and better things, or simply an investment in their creative hobby. Those with realistic aspirations will likely not expect to anything resembling a profit from their early books (save perhaps for those with the skills to produce a comic entirely alone or with collaborators satisfied with payment purely from sale revenue). For many creators, having a partner who ensures copies of their books get into people’s hands, minimising their own administrative efforts is the goal.
What is critical is to do your own calculations, consider your goals along with level of financial investment and energy you have to invest in selling your own book. In this simplified example, we’ve not considered the accuracy of print orders vs sales, tax applications or eligible rebates or potential publisher costs deducted from profits to account for their operational expenses, but it should give you a loose model to consider your own investment against.
Potential Questions – Depending on your financial and creative motivations
What sales numbers does the publisher consider to be a success? Assuming the publisher will set sale price – What margin do they consider acceptable vs costs? What sales avenues does the publisher use? Does the publisher have established relationships with distributors and retailers with agreements to carry their stock? If so, what regions and countries do they have distribution networks within? Which electronic store fronts does the publisher make books available via? What volume of conventions, in which locations, does the publisher typically attend? Are they willing to share any statistics on which platforms generate the strongest sales? How, if at all, are publisher overhead costs factored into overall sale profits for division between publisher and creator? Does the agreement permit the creator to obtain copies of the publication at cost, or discounted rates for either personal use or onward sale? What marketing methods do the publisher deploy to promote new and existing content? Does the agreement, place any expectations or limitations on the actions of the creator to promote the comic? Does the agreement commit the publisher to any minimum volume of books to be produced for sale, or resources allocated to promote the publication?
What’s in this for them?
Now we come to the other half of the deal. In working with a publisher, you grant your partner certain rights in potentially both the short and long term. Understanding the rights, you’re happy to sign away and the long-term implications can be key points in your decision-making process.
Your potential publisher may request some of the following:
Percentage Profits on book sales – This is a given and how your publisher will make the most immediate return on backing your comic and investing in its production or distribution
Editorial and creative direction – While some publishers may primarily take on completed projects, others may provide editorial input. For many creators, this may be beneficial professional, input to improve the project overall. Consider – When you engage an editor privately as a self-published creator, the final decision on how you incorporate your editor’s feedback is your own. A publisher driven edit may take the final creative control out of your own hands. As with many aspects in this section this can be a positive, but it is something you should consider and make peace with before you agree to your publishing deal.
Revenue on sale of promotional and licensed goods – As part of your agreement, your publisher may gain rights to produce and sell a variety of goods associated with your comic. For a small press projects, this could be as simple as prints, postcards and pins made available as add on purchases, but an agreement could equally account for additional 3rd party licensing. Consider – From a financial perspective do you retain a share of the profits from the sale of promotional or licensed goods? Is the rate in line with the percentage you earn from book sales? Depending on the answer to these questions, if your book is successful and lends itself to popular merchandise, you’ll potentially see a larger return on your production investment more quickly, in time you may even see more royalties from the tasteful sets of commemorative glassware your story has produced than the book itself. From a creative standpoint, you need to consider that you are likely giving up a degree of control here. If you’ve strong feelings that series logo should never appear on a tote bag, this is potentially something your deal may remove your option to veto in the future.
Adaptation rights – In licensing your comic for publication, your publisher may request rights concerning the adaptation of your comic into other mediums. These rights may extend to written and audio productions, stage, television and film versions and interactive media such as video games. The requested rights may be inclusive of both financial benefits of licensing for alternative mediums and overall creative control in the adaptation for other media. Consider – If you’re a creative person with hands in other media, be it a keen filmmaker or an apprentice of coding, you may wish to seek to retain your own rights to pursue alternative interpretations of your story. Particularly in fields you have interest in. This may also be the time to consider how you would feel about any alternative take on your work with which you may have no creative involvement or influence over.
Sequel / Spin-off Rights – In agreeing to publish your project your publisher may also requests rights relating to production of related projects, both in comics or other media (as detailed above). These rights may include first review and option to license the new publication prior to it being offered to other publishers, the right to engage the creative team professionally to actively work on a related publication, or potentially engaging a separate creative team. Consider – As with the above point, your decision on agreeing with these terms will depend on your overall attachments to the project and your own long-term plans for ongoing related stories. If the idea of having limited or no control on how your original story grows into future projects gives you cold sweats, this is a right you’ll need to consider your comfort with, before you sign. How important is having ongoing control to you?
Potential Questions – Depending on your financial and creative motivations
What history does the publisher have with facilitating adaptation of comics to other media? Does the agreement, obligate or limit the creator in efforts to adapt the publication for other media? Does the publisher actively seek opportunities for property adaptations, or is this handled ad hoc as interested parties approach the publisher as licence holder? Does the publisher’s right to financial share in adaptation driven revenue differ in the event that the publisher take no active role in adapting or pitching the an adaptation of the property? What rights do the publisher hold regarding the sale or transition of publishing or ongoing licensing rights to a third party?
Overall, considering the ongoing rights and control a creator or creative team is willing to hand over to a publisher will be a critical point for many in making a decision before signing an agreement. How you perceive the value of publisher input, a potential reduction in creative control and your confidence in the long-term potential of your story will be key points in influencing what you’re comfortable in conceding in exchange for the benefits your publisher brings to the table.
The Finer Details
With the main points of your agreement carefully reviewed, it’s time to consider the ifs and buts, concerning the terms and limitations of your agreement.
Time – How long does your agreement grant the stated rights to your publisher? A set period? A set period with right to extend or first refusal to negotiate extension on similar terms or terms related to performance? Indefinite? Location – Are publication rights granted internationally or only in certain territories? Does your selected publisher have capabilities to market and distribute in all stated territories? If not, do they actively seek third party partners to distribute successful publications in additional territories?
Obligations – Are there stated timings for release, efforts to market, volumes sold, or stock made available for purchase a publisher must maintain to retain the license to your comic? Remuneration and Reporting – How frequently are royalties calculated and paid to the creator or creative team? Are there lower and upper limits to disbursement amounts? What reporting does your publisher provide to indicate gross profits leading to creator revenue share? Specifically, when it comes to matters of accounting. If you intend to maintain a financial interest in the performance of your work, appropriate transparency of accounting may be essential to understand your publisher’s level of investment and gross earnings before final profits are divided? Most organisations should permit you a right to audit, but be mindful of the conditions applied. Permitting a deep audit via the appointment of an official accountant able to review documentation on a publisher’s premises may fulfil legal obligations but creates an immediate pay wall for you as an independent creator, whose initial earnings on a single book may not warrant the investment.
If your potential publisher is able to provide sample reporting, you can accommodate yourself with the level of detail prior to signature and assure yourself that the level of transparency meets your level of interest.
Legal obligations – In addition to any submission conditions when you pitched your book, signing a publishing agreement will almost certainly involve your further verification that the work is your own and indemnify your publisher from any obligation or responsibility should this statement prove inaccurate in the future. In addition to the obligations on the creator, take note of any commitments made by the publisher to protect the IP you are licensing to them, and potential indemnity from any actions arising from material changes to the work or subsequent adaptation upon which the publisher, or their representative exercises creative control.
Limitations and release – Tied to the any limitations relating to time or location stated in your contract, it’s also worth noting any other terms which would lead to overall rights being returned back to the original creator or creative team. The most commonly anticipated reason for this would be publisher insolvency, though in some cases a struggling publisher with the appropriate rights could look to sell on any held licensing rights to a third party to raise capital prior to this occurring (assuming your agreement permits this). Clauses that benefit the creator in this area could speak to the minimum level of production or service provided to promote your comic, which if not met over an extended period results in the rights returning to the creator to pitch elsewhere or develop further with no further obligation to the publisher, thus holding your publisher to a higher degree of accountability for your book’s ongoing performance. Another alternative may represent a defined buy out clause, permitting the creative team to release themselves or further obligation to a publisher by either ensuring a pre-defined return on the publisher’s initial investment or a sum equal relevant to the book’s performance. The latter examples, I’d anticipate would be less frequent in their appearance within standard contract language, however these may be some of the most essential inclusions for a creator who is invested in the long-term management and performance of their work.
For an example, we’ll return to Comic X…
Worst case scenario…
Joe Creator, writer of Comic X, signs a publisher agreement granting licencing rights, inclusive of, merchandise, sequel and adaptation control and financial rights irrevocably to a publisher.
Joe’s agreement sees the creator receive 50% of Net profits from book sales but nothing from any additional licensing or merchandising unless directly engaged by the publisher to work on this new content under a separate agreement. The publisher will manage distribution and printing costs but does not contribute to the initial creation cost for artwork and associated tasks.
The rights will return to Joe only should the publisher file bankruptcy or should they fail to produce any volumes of the work within a defined period following initial project completion.
With no minimum term of service, the publisher fulfils their obligation to Joe through a short production run of 50 copies of their book, which are not directly marketed by the publisher but organically sells 30 copies through their inclusion on the publisher’s stand at conventions. The remaining 20 copies are sold at stock clearance reduction prices and do not recoup their print costs. The book is not listed digitally or marketed to any retailers. In the end of his first year since publication, the royalties owed to Joe from the profit share fall well below the minimum payment threshold and no payment is made.
In the five years that follow, the book remains listed on the publisher’s store front as “Out of Stock” and based on performance no further print runs are ordered.
Meanwhile, Joe continues to build career momentum through well received subsequent releases, published independently and interest in obtaining adaptation rights for Joe Creator properties hits public consciousness. Having secured irrevocable licencing rights the publisher secures a lucrative 3 series deal with Netflix adapting Joe’s original Comic X series. Netflix opts to use their own writing team, whose agents ensure they are recognised as lead creatives. A credit listing “Based on Comic X by Joe Creator” appears at the end of the opening credits, but everyone skips these.
With the Netflix series differing significantly from the original Comic X, rather than reprint the original, the publisher opts to engage a different creative team to spin off a new ongoing series based more closely on the aesthetic and themes of the new Netflix creation. The financial impact to Joe from creating the original work remains fundamentally minus £2000 as the £35 owed to Joe in previous revenue falls below the minimum payment threshold. This is an extreme example, played up for the sake of hyperbole, but hopefully it illustrates the point Consider your conditions carefully, what you gain, what you give away, and the level of effort your publisher commits to you. and finally.
Know who you’re dealing with - Know your own worth
Throughout previous sections, I’ve encouraged creators to consider what they want from a publisher, what they are happy to give in exchange and the finer details of agreements.
I’ll leave you with a (mercifully) briefer point by encouraging both research and self-reflection. Your research on a publisher should not begin and end with “Who is accepting pitches?”
Consider the fit of your project within their body of work.
Meet and connect with other creators who’ve worked with them and politely request their feedback.
Look at publisher’s company performance and makeup with resources such a Companies house or Endole. Do they appear financially stable? How large is their team? What other interests to their leadership team have?
Look at publisher’s websites and social media platforms, how are they marketing? How large is their reach? How much interaction do you see with their posts? How large is their portfolio?
Measure your own, time, resources, and reach against your potential publishers and consider objectively and, in quantifiable terms wherever you can, how you measure up. If you’re brining a sizable or active existing audience with you to a publisher this may enhance your ability to negotiate.
To wrap up I’ll say, that I hope the last, almost 5000 words *Jeez* have been of some value, whatever your experience of creating or publishing to date. I by no means consider myself an authority on anything so would be delighted if this sparks further conversation and discussion from others who may add more specific examples and considerations which may help others chasing the goal of having published work out in the wild.
I’ll return to one of my opening points that there are some fantastic publishers doing incredible work in the indie comic scene and making books possible that would otherwise never see the light of day. For indie creators, whether a publishing deal is a Holy Grail or a Poison Chalice will likely remain up to the individual and determined by how circumstances play out. If this helps just one person, take pause, consider their options and make an informed choice it will have been worth the effort.