ADDRESS TO PRO CON 93 by Dave Sim

(C) Dave Sim 1993

Scanned, posted and PGP secured by Terry Smith X(A/N)TH BBS 416 824 4557 by
kind permission of Dave Sim granted JUN 1 93 by telephone.

Permission is granted to copy or post this document provided nothing is added,
changed or removed.

Terry Smith's PGP public key is included at the end of this document as a
courtesy, but is also (for the paranoid :-) ) FREQable from XANTH at
1:259/510 as KEY.

....

APRIL 1, 1993

Although the three subjects over-lap, I will attempt to divide this talk into
three sections; the creator and the direct market, the creator and the
traditional companies and the creator and self-publishing.

The foundation upon which Cerebus is built and the reason it is a success in
the direct market is a monthly frequency, a six thousand page story-line and a
single title character. It makes sense to me to devote twenty-six years of my
life to a single story and a single character. In the direct market your
success is largely dependent on your continuing presence. Because of the
direct market and its structure, this is a weekly entertainment medium. Every
week, and now, twice a week, another shipment arrives in comic book stores
around the world. Every week that your work is not in that shipment brings you
one week closer to being forgotten. More than one creator has made the mistake
of a leave of absence from the comic book field, believing that when he makes
his triumphant return, he will be borne aloft on the shoulders of his adoring
public, showered with fame and riches by them now that their extended wait is
over. What he finds instead is indifference, mild curiosity and an uphill
struggle to recover a fraction of his previous success. The same is true of
the 'career move creators', flitting from character to character, project to
project; a graphic novel here, a six issue run there, a mini-series, a
portfolio. The difference, in his case, is that the loss of stature is more
gradual. He builds his career to a peak of critical and commercial success
which he then watches slip away from him.

I am not saying this is good or bad, I am telling you the nature of the direct
market.

I say that in the futile and empty hope that I can spare us all another five
page diatribe from Gary Groth.

The direct market is often castigated for the very reason it is so successful
and secure, because it is risk free. Selling on a non-returnable basis
simplifies publishing dramatically. You print what you have orders for and you
get paid for every copy that you ship. Where the creative community takes
umbrage is usually at the number of copies ordered. More than one ego in this
room has been severely bruised by the hard truth of perceived merit which is
the foundation of the direct market. Your ego tells you that your book should
have shipped 500 or 600 thousand copies, but your royalty cheque tells you
that it only shipped sixty thousand. It is possible to improve the perception
of your merit in the direct market. Tour 92 changed retailers perceptions of
the marketability of Cerebus, as did releasing the reprint volumes to the
direct market, the announcement that I was writing Spawn number 10 and now,
Campaign 93. To change the perception of your commercial merit, you must first
understand comic book stores. If comic book stores, retailers and their
customers disgust you, the odds are good that you will disgust them, or even
worse, make no impression on them whatsoever.

The direct market is not perfect.

At every level there are ignorant, lazy and myopic people and they are very
much in the majority. There are ignorant, lazy and myopic distributors,
publishers, editors, retailers, fans, collectors, investors and, yes,
creators. It is a great waste of time to discuss them, and yet most of our
efforts are expended in that very thing. Such and such a publisher is an
idiot. So and so a distributor is a moron. Such and such a creator is a jerk.
You can't change someone else, you can only change yourself. Take a good hard
look at your life and your career and ask yourself where you are being
ignorant, lazy and myopic. In my view it comes down to a simple question for
creators. Do you know which stores sell a hundred copies of your work? And do
you know which stores sell three copies of your work? If you don't know this,
you are ignorant. If you can't be bothered to find out, you are lazy. If you
can't see why it's important, you are myopic.

It is very easy to be ignorant, lazy and myopic when you have a hundred people
lined up for your autograph, when you are making more money than you ever
thought you world, when you are besieged with offers of work from every
company in existence. If you remain ignorant, lazy and myopic as the lines get
shorter, as your income peaks and then begins to decline and the job offers
become fewer, further apart and less lucrative, it is too late to learn, too
late to take any action. When you are riding high, it is difficult to believe
that 'this too shall pass', but it always has and it always will.

Image is the first sensible reaction to this basic truth of the direct market.
Will Spawn always be the number one comic book? No. Of course not. How long
will it be at or near the top? There's no way of knowing. The critical
difference with Spawn is that Todd McFarlane recognized that he is hot NOW,
while he was working on Spider-man. He recognized that he was making an
enormous amount of money for Marvel Comics and that the percentage of that
money that he was being paid was minuscule. He recognized that there was a
window of opportunity NOW to make his future financially secure and to take
control of his career. He recognized that at Marvel, his career was out of his
control. A change of editor, of editorial policy, of company ownership, any
number of things could throw him out in the street at a moment's notice. If
Marvel could throw Chris Claremont away after fifteen years, refusing even to
let him write a farewell note on the letters page of the book he had made into
the industry standard, what security is there? Todd McFarlane recognized that
there is no security. There never has been and there never will be. The
greatest myth to which most freelancers adhere is that there is some bank
account of good-will at a company into which they are making regular deposits
through loyalty and service. There is no known example of this. Termination is
inevitable. It is abrupt and it is without explanation or apology. All it
takes is for the company to decide that you are difficult, ungrateful or
demanding and they will cast you out and replace you with any one of a
thousand newcomers who are easily manipulated, obsequious and deferential.
They always have and they always will.

There are several hard and universal truths about companies that you already
know, but which, I think, need to be stated here. The most important is that
if you sign a contract you have lost control of the work in question. I'm
going to repeat that one frequently. Companies have recently begun changing
their rhetoric from 'creator-owned' to 'creator-controlled' because they can
sense the changes that are occurring in the field. They have changed the name,
but the game is still the same. Once you have signed a contract, all of the
vital decisions are theirs. They hold all the trump cards. The myth of course,
is that if they violate the terms of the contract you can sue them. It is a
myth because it takes a lot of money to sue an individual successfully and a
ton of money to sue a company successfully and that brings me to the second
hard truth about companies. No company is ever going to pay you enough money
to sue them successfully. They might pay you enough to retain the services of
a competent lawyer for a few weeks or a few months or a year or two, but they
know you will eventually run out of money and when you do you are going to
have to settle out of court. Your settlement might cover your legal expenses
but this is not likely.

A lot of people in this room are currently working on material for which they
have not received a contract. A lot have completed work for which they have
not received a contract. There are even people in this room who have had work
published for which they have not received a contract. Companies do this to
limit any possibility of negotiation. By the time you get the contract, you
have already done so much work and need money so badly that you will sign it
whatever you might think of the terms. If you find yourself in the situation
of having work printed or reprinted without a contract being signed, you could
hold onto the contract when it comes, not cash the cheque and sue the company
for unlawful use of your work

I say that and it sounds plausible. In a perfect world where a system of
institutionalized justice actually existed, it would be plausible.

Here's what would actually happen.

Your lawyer would phone the company's legal department and the company's
lawyer would claim it was an oversight. Your lawyer would explain to you that
it was an oversight and suggest that you sign the contract, endorse the cheque
and save yourself a lot of needless bother. Even if he was one lawyer in a
million and you insisted that you wanted to sue, and he was willing to go
ahead, it would cost you a lot of money. If it actually came before a judge a
year or two later after the company had thrown every conceivable road-block in
your way . . . it wouldn't, but for the sake of argument, let's say it would .
. . the judge would look at the piddling amount that the check was made out
for, would look at whether you had a history of cashing cheques for equally
minuscule amounts and he would tell you to sign the contract and cash the
cheque and stop being such a nuisance. In the eyes of the law. you would not
be a prominent creative gun-for-hire who is a wronged second party in a
contractual dispute, you would be an outside piece-worker with a history of
selling your piece-work for nickels and dimes; an old lady stuffing envelopes
out in the suburbs filing a nuisance suit against a multi-national direct mail
conglomerate because she got her nose out of joint about something. All the
company needs is your signature or for you to express your intention to sign a
contract and begin work and absolute control is theirs. In the event of any
dispute, their interpretation of the agreement is the correct one. They can
afford to enforce their interpretation because they can afford to assign a
lawyer to the dispute for two years, five years, ten years, however long it
takes until their interpretation ultimately prevails. If their opposition is a
freelance comics creator, it will take months, not years. These lawsuits have
happened; the reason you don't know the injustice of the results is that each
out of court settlement is accompanied by a restraining order which keeps the
creator from saying anything about the settlement or the merits of the case.
They know exactly how long it will take to win because they know how much
money they gave you and how long it is going to last.

All right. You got a couple of anxiety pangs out of that one, but you have the
answer. You just won't sue any companies. That misses my original points, so
I'll return to them.

One, no company will ever pay you enough to sue them successfully and two, it
you sign a contract you lose control of your work. Let's amplify that second
one there a bit, since I know you doubt me when I say that.

How much of your work is in print and available?

Ninety-nine percent of what I have created in the last fifteen years is in
print and available. There hasn't been a month go by since 1979 that I haven't
made money on the story in Cerebus #1. Cerebus is creator-owned, yes, but more
important it is creator-controlled. The critical element of control is a work
being in print and available. If it is not in print and available and you
would like it to be, you do not have control over it.

If you create a graphic novel or a comic book series and you sign a contract
for it and take an advance payment, you have lost control. The company you
signed the contract with controls it. So long as the company wants it to be in
print, it will be in print; when they decide to let it go out of print it will
go out of print. There are many creative works that the stores are screaming
for and which could be earning money today for their creators, but once a
company decides to let a work go out of print they very seldom change their
minds. You get a chunk of money up front, a few royalty checks that get
smaller and smaller and that's it. Your work is out of print and unavailable.
Oh sure, you can wait for the reversion clause to kick in. A year or two
later, the rights have reverted to you. You can take it to another publisher,
assuming you haven't sold any of the original artwork or assuming your
contract specifies that you get the negatives or the printing plates, and he
gives you another chunk of money, you get a handful of royalty checks that get
smaller and smaller and then your work is out of print again. Meanwhile four
or five years have gone by between the first and second printing and your work
has been on sale and available for a total of four or five months. Companies
are like sharks; they have to keep moving forward and they have to feed
constantly. Given a choice between reissuing a work they sold fifty thousand
copies of and got total reorders of eight thousand copies for and publishing a
new work that they can sell fifty thousand copies of, they're going to choose
the latter ninety-nine times out of a hundred.

This all comes under the umbrella of what I like to call the advance game. It
sounds good. Just sign here and get a cheque for eight thousand dollars. But
how long does that eight thousand dollars have to last you? It has to last
until you complete the work and it has to last until the royalties start
coming in. If that period is eight months or a year, you have to stretch that
money to cover. If it won't stretch that far, you have to go out and get
another advance. It is far more the rule than the exception in the comics
field that creators have all of their available working time committed for for
the next year, two years, three years and have already spent most of the money
that was supposed to keep them alive for that period. It is not difficult to
see the end of the advance game, which is why so few people who are playing it
look any further ahead than a few months or a year. You keep going until you
drop dead of exhaustion and all you have to show for it is whatever is left of
your last advance payment and your last batch of royalties. And a body of work
that is out of print and unavailable. These are inescapable truths. If you
ignore them, you are trading the peak years of your creativity for a hand-to-
mouth existence. I can't put it any plainer than I already have. If you sign a
contract you have lost control of your work. No company will ever pay you
enough to sue them successfully. A company's interpretation of a contract is
the accurate one because they can afford the legal muscle to enforce their
interpretation.

Another hard truth is that companies mutate. Don't forget that. If you sign
with a company because you have a good relationship with an editor or
publisher and that editor or publisher is fired or quits, your contract is
with the company; not their employees. When they quit or are fired you have to
deal with their successors who might not like you and might not like your
work. Your work will go out of print faster, changed in ways you didn't want
it changed. Remember, the company decides what your contract says and what
effort they exert on your behalf and you have no control over whatever they
decide to do. You can sign on with a small company with a handful of
prestigious titles. They admire your work and fall all over themselves to get
you to sign with them. They can't do enough for you and you're one of their
biggest stars. Then they start growing, expanding. They decide to do a line of
work-made-for-hire super-hero titles drawn by naive twenty year olds for
nickels and dimes and which earn them twenty times what your book does and
suddenly you can't get anyone above the rank of production assistant to return
your calls. What are you going to do? Sue them? How? And for what? Companies
get sold and companies get taken over. You might have a clause in your
contract that says it is not transferable, that it can't be sold. Under
business law a take-over doesn't constitute a transfer. Your work is still in
the belly of the same fish, it's just that that fish just got eaten by a
bigger fish. A bigger fish that might decide that the merchandising clause in
your contract includes film rights. What are you going to do? Sue them? Bigger
fish have more and better lawyers and deeper pockets (to mix a metaphor). Then
there's bankruptcy. Chapter eleven protects the company from its creditors,
but it puts your contract on the auction block if a bankruptcy court decides
that it is a company asset. Then the bankruptcy arm of an accounting firm gets
to decide who they sell your work to and for how much. You can file an appeal,
but you're going to need a very good, very expensive lawyer to see it through
and that is going to cost you a lot of money; five figures and maybe more and
it's a seventy-five twenty-five odds against you that a judge is going to find
in your favour over the interests of a large company. Fifty or sixty thousand
dollars to get back a creative work that has been out of print for years and
which earned you maybe five or ten thousand dollars when it first came out.

These are not hypothetical examples. Each of these situations has happened to
creator-owned properties, because they were creator-owned but at the exact
moment a contract was signed they were no longer creator-controlled in any
meaningful sense of the term.