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Tokyopop: the other side

Well, now that the moral outrage has subsided a bit, other folks are coming out to say that the Tokyopop Pilot Program pact isn’t that bad.Editors Paul Morrissey and Hope Donovan speak in a press release which manages to both be written in standard English and make some vital points that did not come across in the contract.

We’ve made the contracts generic, to include as many creators as possible, and what you see is the same deal extended to everyone. We’re proud to be able to present these contracts as they are, so that love it or hate it, we’ve empowered potential manga creators to understand the terms long before they propose a project.

Making the contracts available to all is just the first positive step for TOKYOPOP that the Pilot Program represents. Of course we want our Pilots to be successful, and we want to work with Pilot creators to develop their Pilots into other media. And if we do so, an entirely new contract is drafted for that particular project-whether it be a full-length book deal, a film/TV deal, etc. However, TOKYOPOP realizes that some Pilots will not develop beyond their initial stage. And that’s why the Pilot Program is also progressive in returning rights to creators. For any Pilot that doesn’t pan out, the rights to the project are returned to the creator after the one-year Exclusive Period ends. After that, the creator is free to take that exact chapter created for us as well as the property anywhere they like-whether that’s self-publishing, publishing with another company or putting it on the back burner. At this point, for example, if the creator were to land a film/TV deal based on their Pilot property, TOKYOPOP would have no stake in that venture.

The most evenhanded take on the contract comes from Canadian producer type Brad Fox who points out that a lot of the elements that are so objectionable are actually quite standard, including the lack of “moral rights.”

This is one case where the “folksy” language obscures a very tricky legal issue in North America. The armchair version is that there is a concept called “Droit Moral” (Moral Rights) in French International law that is almost entirely incompatible with North American copyright law – and allows creators under certain situations to completely block or shut down the release of their work. Even if they’ve agreed to it previously. If a company works internationally they almost always need these rights specifically waived to limit claims to their local definitions of “copyright” because otherwise these laws can be (under some circumstances) boiled down to “other people can’t do anything with an artists creation ever if the artist later decides they don’t want to let them”. This (understandably) creates a chilling effect on a publishers ability to do business in the EU, or with any company which does business in the EU.

It’s not fair to tar TP with this brush, as it’s been in most International contracts I’ve ever drafted in my career, or that I’ve seen, be it in print, journalism, literature, art, for hair-stylists, camera assistants, actors, house-painters… anyone I’ve ever engaged on a film, television program, play, internet series… if it has anything to do with Europe (or there’s a hint that it may be sold or displayed anywhere in the EU, or may come in contact with a company which works in the EU) that clause has to be in there. And it’s been signed by each and every one of them (including oscar-award winning actors and directors with oscar-award winning law-teams).

There’s a lot you can blame on corporate avarice – but until the International courts find a way to reconcile two law systems that just have completely different ways of approaching a metaphorical concept like “copyright”… I don’t think you can this in that camp.

It is true that America does not recognize “moral rights” — setting it aside from most of the rest of the Western World. But it is equally true that this is not something that Toykopop came up with — although they did some up with the idea of totally blaming the French for this troubling idea. Fox’s post is well worth reading in its entirety. He comes back to the issue after having heard more about Toykopop’s track record and the low $20 a page rate, but still thinks it’s not such a bad contract:

If there’s value in your premise you can take it to another publisher, or self-publish it, or start serializing it on the web… if there’s not, you can do something else – but either way if you’re smart you can start with a base audience larger than you would have had otherwise. How is that a loss for a creator?

It does mean that creators have to be willing to walk away from deals… and I know firsthand how hard that can be. But there is still value there, and ways for creators to work this particular program to their advantage.

Current Tpop creators have also begun speaking up, at least the bold ones like Rikki Simons:

Given all that, I suppose the question goes, why did Tavisha and I publish with Tokyopop? Why did we sign our (better) contract with TP in 2003 instead, as one Star Blazers douchbag once put it to me, “go with a real publisher?” Because, my Dear Mr. Bag, however Hollywood Tokyopop wants to be, they were then, when we signed our contract in 2003, and still are, a real publisher. They pay a $21,000 advance for each book that I create with Tavisha. We keep our copyright and allow them use of the copyright while they are publishing us (granting them licensing power). We can tell them goodbye and take our book elsewhere if we ever pay back, or when our sales finish paying down, the advance. In the mean time, they get our books into regular bookstores. I am not looking for a movie deal. I am a writer of illustrated books. This, to me, is justice, and for thousands of authors the world over this kind of agreement has been justice for more than a century.

Tintin Pantoja also weighs in:

On other notes, I guess everyone on LJ and beyond has been blogging about the contract stipulated for Tokyopop’s Pilot Manga Program. I don’t feel like I’m in a proper position to weigh in. There have already been better–informed statements in the past few days. As someone who’s currently working for the company in question, no answer from me can possibly come across as unbiased.

I WILL say that those who are skilled in the craft , possess initiative, research their options, have financial and emotional support through the inevitable lean periods, and, most of all, respect their abilities, will probably find satisfactory outlets. I say ‘probably’ because so much is due to sheer luck and circumstance: what language you speak, what part of the world you live in, and the opportunities that happen to cross your path. Thanks to the internet, those opportunities have expanded considerably.

Jennifer De Guzman comments at Johanna’s blog that smarmy language aside, this isn’t even the worst contract on the block:

Thanks for this, Johanna! I was curious about secondary rights and such. This means the Tokyopop Pilot Program a lot less exploitive than Zuda, I think — that contract takes all rights for not much more money, and I don’t recall a response as vehement. It’s probably because the Tokyopop “pact” was just so stupidly written.

We actually received private communiques from people we respect who pointed out that contracts offered by DC, Dark Horse, Oni and so on are just as restrictive at the end of the day, retaining trademarks, co-owning copyrights, holding onto ancillary rights and so on. (That’s a blanket overview and not a universal analysis of any one company’s contracts.) The sad bottom line, as we read it, is that in comics, it is still standard operating procedure to exploit IP in a way that is vastly more favorable to the publisher.

Of course that’s a simplistic generalization. In the book publishing world, where graphic novels are becoming more and more a part of regular publishing, it has long been the enlightened belief that giving best selling creators a bigger piece of the pie is incentive for them to stay with you and keep making you, the publisher, money. It’s a rarified attitude and one that, sadly, we imagine will be going the way of the dodo eventually. The book industry is beginning to look at the ways it has done business. Bob Miller’s new Harper Collins imprint lowers advances in return for a bigger back-end, non-returnability is becoming a more and more talked about alternative, and the business model is rapidly changing in myriad ways. (You can bet we’ll be talking about this over the weekend!)

In the end, we regret not a whit of our righteous anger. The contract is written in an offensive way and the pay is so low that you might as well do it yourself. Luckily, as Tom points out, people have options now.

Always remember that the most successful and admirable creators have become so almost uniformly by not signing contracts like this one. There are so many options today for a lot of what they’re promising you, there are a ton of great publishers and many viable self-publishing options. If your work doesn’t click so that it can find purchase with a company that’s not ripping you off, or it fails to make a name for itself on its own, that’s a strong sign that the company’s interest in you is dependent not on the awesomeness of your talent and ideas but on their ability to screw you over. Please, don’t let them do it.

And yet, reading the responses over on the Tokyopop message board where this is being discussed, it’s hard not to see, as Kiel Phegley put it in the comments here, the young aspirants who really don’t have a fucking clue how to do this. We flash back ourselves to our own first published writing, when a penny a word seemed like a king’s ransom, and just the idea of getting published had the whole family, from Tucson to Nyack, excited. It’s easy to imagine young Eloise “Bonzai Trooper”Jones excitedly telling her parents that Toykopop, the #1 American manga publisher, has accepted her “No, teacher! It’s sore!” manga pilot and the family beaming with pride. They don’t care about $20 a page. They just want to see Eloise in print or on a phone or whatever.

Everyone has to learn their craft somewhere. Some young folks may well learn from the Manga Pilots program. They may learn how to get better at their craft, or they may learn what it feels like to get screwed. Everyone will have a different story, we imagine.

The post Tokyopop: the other side appeared first on The Beat.

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