Model Graphic Novel Collaboration Agreement in California

Model Graphic Novel Collaboration Agreement in California

This Guide provides a simple Model Collaboration Agreement between a writer and an artist to create a graphic novel. The Agreement is controlled by California law and arbitrated, if necessary, in San Francisco. The Agreement assumes that the writer pays the artist in cash up front and in exchange, the artist will perform services as directed by the writer. At the end, the artist will have no ownership interest and no copyright in the final graphic novel--although the artist may have some rights to certain cash bonuses. Any language inside the brackets needs to be filled out by the parties. Of course, this Model Agreement does not constitute legal advice and no agreement should be signed without consultation from a licensed attorney.


Model Graphic Novel Collaboration Agreement in California

ARTIST AND WRITER COLLABORATION AGREEMENT

of [date]

This ARTIST AND WRITER COLLABORATION AGREEMENT (“Agreement”) between [name of artist and/or artist’s company] (“Artist”) and [name of writer and/or writer’s company] dba [name of sole proprietorship, if any] (“Writer”) is made on the date stated in the title of this document (the “Effective Date”) in connection with the creation of a graphic novel tentatively entitled, [Title of Graphic Novel].

            WHEREAS, Writer has written and registered a copyright in a Screenplay entitled, [Title of Screenplay] (the “Screenplay”);

            WHEREAS, Writer and Artist seek to collaborate to create a Graphic Novel, or a portion of a Graphic Novel based on the Screenplay, also to be entitled [Title of Graphic Novel] (the “Graphic Novel”);

            WHEREAS, Writer and Artist have come to an agreement-in-principle as to the working terms of the collaboration and now seek to codify that agreement-in-principle in a written document;

            THEREFORE, the Artist and Writer (collectively the “Parties”) agree to be bound to the following terms and conditions.

  1. Artists Obligations. Writer engages Artist to render the following services: (1) collaborate with Writer in order to create visual art for the Graphic Novel; (2) draft pencil illustrations for the Graphic Novel; (3) draft ink the illustrations for the Graphic Novel; (4) color the illustrations for the Graphic Novel; (5) letter the Graphic Novel; and/or (6) draft cover art. Collectively or individually, the artwork referred to in this subsection, and all visual art produced under this Agreement, including but not limited to all illustration, painting, drawing, coloring and/or lettering whether digital, physical, or otherwise, shall be referred to as the “Work.”
    • Ordered Commission. Upon a written request from Writer, e-mail serving as a sufficient writing, Artist shall perform work of the kind and quantity specified in the writing, to be due on the date specified in the writing.
    • Deliverables. For any Work produced under this Agreement, the Artist shall produce to Writer art in the following electronic format: Photoshop PSD & TIFF.
  2. Consideration. For work performed by Artist under this Agreement, Artist shall be compensated as follows.
    • Sequential Art. Artist shall be paid $[amount] per page of final and approved pencil, ink, color, and lettered sequential art Work. [BONUS CLAUSE: In the event that the Graphic Novel is picked up and distributed by an established publisher within one year of this Agreement, then Artist shall be paid an additional $[bonus amount] for every page previously created by Artist and reproduced in the distributor’s subsequent publication.] [IMAGE CLAUSE: In the event that the Graphic Novel is published or in contract to be published by a third party, then Artist and Writer and/or third party shall negotiate in good faith to establish a fair page rate of compensation for Artist’s Work.]
    • Cover Art. For color cover art Work, Artist shall be paid $[amount] per page.
    • Mechanics. Upon completion and acceptance of final Work, Artist shall invoice Writer for monies due. Full payment on invoice shall be due within thirty days. Artist shall accept payment via PayPal or via check drawn on a United States bank.
  3. Working Terms. The Parties shall be available to each other at convenient times to discuss the Work, the progress of the Work, to conduct story meetings, and to exchange notes regarding the Work and progress of the Work. Unless otherwise specified, said consultations, conferences, and meetings shall occur via Go to Meeting or equivalent videoconference service at Writer’s expense. Parties shall also keep each other reasonably appraised of progress via e-mail.
  4. Credit. On condition that Artist’s work is located in the final published Graphic Novel, then Artist shall receive credit as follows.
    • The Artist credit shall state: Artist: [Name of Artist]
    • The credit may list Artist’s name along side other Artists’
    • Writer shall determine, in his sole discretion, the size, style, manner, position, prominence, mode and placement of presenting such credit. Writer’s credit on the cover, spine or title page shall be no larger than Artist’s credit. No casual or inadvertent failure, nor failure of any third party, to give the applicable credit shall constitute a breach of this Agreement.
  5. Original Art. All original art, meaning the physical art, if any, created by Artist for the Graphic Novel, and the proceeds from the sale of such original art, shall remain the sole property of Artist, notwithstanding the fact that copyright may be owned by Writer or Writer’s licensees or assigns. Before sale of any original artwork to a third party may be complete, Artist must offer Writer the right of first refusal and 48 hours to purchase art at the offered price, or to waive said right.
  6. Termination. Either Party may terminate this Agreement with thirty-days written notice to the other party for any reason or for no reason. At point of termination, any Work owed by Artist to that point shall be completed on any previously-set, or concurrently agreed-to timetable. Any monies owed by Writer to Artist shall be paid within thirty days of date of termination or thirty days of completion of final and approved Work, whichever is later. All provisions of this Agreement except sections one and two survive termination.
  7. Intellectual Property. Any and all literary or artistic works, writings, or ideas, or any Work (as defined in § 1 herein), created under this Agreement, or related to the Screenplay, or related to the Graphic Novel, or submitted by Artist to Writer, whether orally or in writing shall be deemed a “work-made-for-hire,” specially ordered and commissioned by Writer for use as a contribution to a collective work, and/or as a part of a motion picture or other audiovisual work. See 17 U.S.C. § 101. Artist acknowledges that the Work has been or will be rendered in collaboration with others. Notwithstanding the foregoing, if and to the extent that it is determined that Work (as defined in § 1 herein), or work of any kind is not a “work-made-for-hire,” then Artist irrevocably assigns to Writer in perpetuity and throughout the universe, all rights and interests, including but not limited to all copyrights in and to the Work (as defined in § 1 herein), in any work, writing, or idea produced under this Agreement, in any work, writing, or idea related to the Graphic Novel, and in any work, writing, or idea related to the Screenplay. In the event this assignment sub-clause is effectuated, the Artist shall aid and facilitate as necessary the assignation of all rights to Writer.
    • Writer and its licensees and assigns shall have the right to adapt, change, revise, delete from, add to and/or alter any part of the Artist’s Work.
    • Writer and its licensees and assigns also have the absolute and exclusive right to use or not use, e., not include, the Artist’s Work in any manner, including but not limited to the use in the Graphic Novel.
    • Artist hereby waives any so-called moral rights of authors in the Work, including but not limited to any rights under the Visual Artists Rights Act or a substantially similar law.
    • Notwithstanding any other provision, Artist does not own, and by virtue of producing Work, shall not acquire rights of any kind in the Graphic Novel nor the Screenplay upon which it is based, their characters, story, nor plotline, nor possess rights in derivative works based on the Screenplay nor Graphic Novel, including but not limited to movies, videogames, additional graphical works, novels, television shows, internet-based narratives, or the like.
    • As to whether the Graphic Novel is licensed, assigned, sold, transferred, to a third party, and/or published as an independent project or in association with an established publisher is at the sole unilateral discretion of Writer.
    • The Parties contemplate that that new or changed (i) technology, (ii) uses, (iii) media, (iv) formats, (v) modes of transmission and (vi) methods of distribution, dissemination, exhibition or performance (hereafter the “New Exploitation Methods”) are being and will inevitably continue to be developed in the future, which would offer new opportunities for exploiting the intellectual property rights discussed in this section and that producing work as a “work-for-hire” or assigning work as may be the case under the terms of this section, Artist intends to and does hereby grant and convey to Writer any and all rights throughout the universe in perpetuity in and to such New Exploitation Methods.
  8. Remedies. If there is a breach by Writer, the damage caused by such breach is not irreparable nor sufficient to entitle Artist to injunctive or other equitable relief, nor to rescind any of the rights granted or assigned to Writer. Artist’s sole and exclusive remedies shall be limited to the right, if any, to obtain money damages at law and Artist hereby waives any right or remedy in equity, including any right (i) to terminate the Agreement, (ii) to rescind Writer’s right, title or interest in and to the intellectual property discussed in § 7, or (iii) to enjoin, restrain or otherwise impair in any manner the production, distribution, advertising or exploitation of the Graphic Novel, the Screenplay, or any work based thereupon. Artist’s services, however, are special, unique, unusual, extraordinary, and of an intellectual character giving them a peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law and that in the event of a breach by Artists, then Writer will be entitled to seek equitable relief by way of injunction or otherwise.
  9. Notices. All notices, which either Party is required or may desire to serve on the other, shall be in writing. E-mail sent via a reliable server to a known e-mail address constitutes a writing. Notices shall be served to the addresses, or e-mail addresses specified herein.
  10. Independent Contractor. The Artist warrants that he is an independent contractor and is not an employee of the Writer. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the Parties nor to allow either party to bind the other or incur any obligation on its behalf. Writer is authorized to hire or retain any other employee or contractor to perform work on the Graphic Novel including but not limited to art work.
  11. Assignment and Succession. Writer shall have and does have the right to assign this Agreement and rights conferred under this Agreement at any time to any person or entity. Neither this Agreement nor any rights hereunder are assignable by Artist at any time to any person or entity. This Agreement inures to the benefit of Writer’s successors, assigns, licensees, grantees, and associated, affiliated and subsidiary companies.
  12. Severance. If any portion of this Agreement is deemed to be invalid for any reason, the remaining portions shall remain in full force and effect, notwithstanding the invalidity of said portion.
  13. Complete Integration. This written Agreement constitutes the full and complete agreement between Artist and Writer regarding the Graphic Novel, the Work, the Screenplay and the issues discussed herein. Any other prior oral or written, express or implied agreements between Artist and Writer regarding the Graphic Novel, the Work, the Screenplay or the issues set out herein, are void and unenforceable. Any representations as to consideration in this Agreement constitute the sum totality of any and all consideration due to either Party.
  14. California Law. In any controversy arising out of this Agreement, or relating to the Work, the Screenplay, or the Graphic Novel, California law shall exclusively control, regardless of any other outcome mandated by choice of law (even California or 9th Circuit choice of law) provisions.
  15. Jurisdiction and Venue. For purposes of jurisdiction, this Agreement shall be deemed created and entered in the State of California. All Parties consent to the personal jurisdiction of the State of California. The venue for any action or arbitration filed in connection with this Agreement, or related to the Work, the Screenplay, or the Graphic Novel shall be San Francisco, California.
  16. Ambiguities or Uncertainties. This Agreement shall be interpreted and construed without reference to the identity of the Party or Parties preparing this document, on the express understanding and agreement that the Parties participated equally in the negotiation and preparation of the Agreement, or have had equal opportunity to do so. Accordingly, the Parties hereby waive the benefit of California Civil Code Section 1654 and any successor or amended statute, providing that in cases of uncertainty, language of a contract should be interpreted most strongly against the Party who caused the uncertainty to exist.
  17. Modifications and Addendums. Any modification, addendum, or alteration of this Agreement is void unless in writing and executed with the mutual consent of both Parties. Modifications, addendums, or alterations to this Agreement shall not be retroactive unless so stated in the modification, addendum, or alteration.
  18. Counterparts. Counterparts of this Agreement, such as paper copies, electronic documents, faxes, and the like shall operate as the original. But upon execution, each Party shall furnish to the other an original signed copy of this Agreement and any subsequent modification or addendum.
  19. Representation and Warrantees. Each Party represents and warrants to the other that each is free to enter into this Agreement. The Parties further represent and warrant, that to the best of that Party’s knowledge, the material created by and through this Agreement: (1) is original; (2) does not contain any libelous or other unlawful matter; (3) does not invade any right to privacy or publicity; (4) does not infringe any third-party’s copyright rights, trademark rights, trade secret rights, patent rights; and (5) is not based on a third-party’s life story (absent disclosure of this fact herein). Each Party agrees to hold the other Party harmless from and against any and all claims of libel, infringement of intellectual property, invasion of privacy, or similar torts arising out of material created by that Party in and for the Graphic Novel, including the Work.
  20. ADR. Any controversy or claim, exceeding $10,000 regarding the Graphic Novel, the Work, the Screenplay, this Agreement, or the breach thereof, must be submitted to binding arbitration and resolved or settled via binding arbitration upon the written request of either Party upon the other. A single arbitrator shall hear the dispute. Unless ordered otherwise by the arbitrator, Parties shall bear equal arbitrator fees. The arbitration shall be administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules which is incorporated herein by reference, modified only by the following addendums:
    • The Arbitrator shall have jurisdiction over the Parties regardless of any given Party’s declination to appear before the Panel or pay Arbitrator’s fees, as long as the following procedure has been followed: notice of the Arbitration has been served consistent with process for which a summons would be served in a civil action, under the laws of the state of California.
    • The AAA Commercial Arbitration Rules and Mediation Procedures, Rule R-22 regulating the pre-hearing exchange of information is amended as follows: no Party may seek and the Arbitrator may not order (1) responses to written interrogatories, (2) responses to written requests for admissions, nor (3) pre-hearing depositions.
    • Judgment on the Arbitration Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
    • The arbitrator shall, in the Award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party.
    • Arbitration shall occur in San Francisco, California. The laws of the state of California shall exclusively control. The Parties consent to personal jurisdiction in the State of California.
    • The award of the arbitrator shall be accompanied by a statement of the reasons upon which the award is based.
    • The award of the arbitrator may not be appealed.

By initialing below, the Parties confirm that they have read and understand the arbitration clause and the related subsections above, and voluntarily agree to binding arbitration. In doing so, the Parties voluntarily give up important constitutional rights to trial by judge or jury, as well as rights to appeal. Parties are aware they possess the right to have an independent lawyer review these arbitration provisions, and this entire Agreement, prior to initialing this provision or signing this Agreement.

                        ______   (Writer Initial Here)         ______   (Artist Initial Here)

 

So Agreed,

 

ARTIST

 

 

 

WRITER

[Artist Name]                                               [date]

On behalf of self and on behalf of Company

[Name of Company if any]

[Land Address; Telephone; E-mail]

[Writer Name]

On behalf of Company

[Name of Company if any]                                               [date]

[Land Address; Telephone; E-mail]