Shazam!

Superhero movies are still in vogue, in case you missed it. This ongoing surge in popularity has translated into a steady increase in the graphic novel market. Graphic novel sales have continued to skyrocket, topping out at $1.28 billion in 2020. While hunker-in-the-bunker mode during the pandemic had a huge impact on the “faster than a speeding bullet” sales of graphic novels, this “up, up, and away” trend has continued in 2021. Part of that success story is due to the expanding readership and content of graphic novels from predominately male oriented to include women, girls, people of color, and the LGBTQ community.

Popularity aside, I have heard breaking into the comics and graphic novel industry is hard. Sounds like a superhero challenge to me. So tie-on your red cape, strap on that armor, and tap into your inner superpowers so we can learn about publishing graphic novels.

What is a graphic novel?

The basic definition of what constitutes a graphic novel is book-length comics, or books made up of comic content. But graphic novels are more than just a comic book.

Graphic novels often tell a single, continuous narrative, or are sometimes a collection of short stories like an anthology. While comic books and graphic novels both tell stories via panel-style illustrations with superheroes and villains, graphic novels develop deeper story arcs and characters, thus reading more like a novel than a weekly comic strip often centered on action.

Who is involved in making a graphic novel?

Just like a prose novel, graphic novels take a village to create. Traditionally, a graphic novel is created by a:

Writer — who develops the plot, character, and dialog;
Penciler — who creates the layouts on the page and draws the characters and settings;
Inker – who inks over the penciler’s drawings, focusing on shape and width of lines, including hatching, cross-hatching, and feathering;
Letterer — who draws the words in the balloons;
Colorists — who selects and places the colors and special effects on the page;
Cover artist;
Book designer — responsible for the book layout and pages not part of the graphic novel story;
Editor; and
Proofreader.

Often people who do these jobs wear multiple hats, like an illustrator who is the penciler, inker, letterer, and colorists. Or the writer who is also the illustrator.

How are graphic novels published?

Graphic novels, like prose novels, can be published via the traditional route (including comic publishers, literary publishers, small presses, etc.), or the self-publishing route. But unlike prose novels, the process for publishing a graphic novel is less consistent. Publishers of graphic novels have a wide range of submission policies. Some work with agents, some accept submissions directly. Some want full scripts, others like partial scripts or stories in comic style format. Some like submissions to include very few illustrations but with a link to the illustrator’s portfolio. Others want submissions without illustrations but with broad illustration direction. Some publishers like using their own illustrators. Other publishers want both writer and illustrator onboard as co-creators. Some publishers rely on the writer to hire the illustrator and secure the rights to the artwork before delivering a final manuscript for publication. And this list does not even cover what the agents like to receive via queries or proposals.

As for self-publishing, while this route has taken time to gain acceptance in the lit world, self-publishing graphic novels is regarded as normal. There is a huge community for self-publishing comics and graphic novels with plenty of peeps to hire when organizing a creative publishing team.

Depending on the project, a graphic novel publisher can either negotiate a contract directly with a writer, or a writer-illustrator team, or an agent representing the writer/writer-illustrator team. If you are self-publishing, then you will need to negotiate contracts with your team of creators just as you would for a prose novel.

Publishing Contracts For Graphic Novels

1. Traditional Publishing Agreement

Graphic novel agreements with publishers tend to follow the same format as a publishing agreement for a prose novel with similar terms—grant of rights, territories, advances, royalties, delivery deadlines, editorial control, etc. See my earlier post on the top deal points in publishing contracts for more information.

The Publisher will want exclusive rights to publish and distribute the story and artwork. The copyright in a graphic novel can be jointly held by the author and illustrator, or solely owned by the author (should the author use a work-made-for-hire-agreement with the illustrator, see below). For that exclusive license, publishers will pay an advance plus a royalty. Depending on the project, writer and illustrator may share in both the advance earned royalties, or the publisher might pay the writer a large advance plus a royalty, expecting the writer to pay the illustrators and creative team from that advance on a work-made-for-hire basis, or a small percentage of the advance with some royalty/profit-sharing deal.

Publishers will also want to lock down certain subsidiary rights, like movie, television and merchandising rights. Authors and illustrators will want approval of the text and illustrations.

2. Self-publishing Agreements

If you are organizing a creative team on you own, you will need to decide how the rights will be shared, if at all, and how the creative team will be paid (page rate, royalty/profit-sharing deal based on percentages related to the amount of time each person spends on their creative task).

Two contracts you should be familiar with are Collaboration agreements and Work-Made-For-Hire agreements.

Collaboration Agreement

For the writer and illustrator who plan to produce a graphic novel as co-creators, a collaboration agreement is what you need. Why? Because creative collaborations are like marriages – a long haul filled with trust, love, admiration, and conflict that either is a joyous and rewarding adventure, or something that ends in a disastrous divorce.

A collaborative agreement will define rights, processes, remedies, and variables that arise when two people decide to work jointly on a creative project. It will ensure expectations regarding control over the work and rights thereto are mutually understood and legally binding. Setting responsibilities and obligations in the beginning allows creativity to flourish and the joint project in the end the best opportunity to succeed. A happy marriage. Or at least, that is the idea.

Here are a few elements, questions, and variables to consider when entering into a creative collaboration.

Description of the project and how the work is divided
- Describe the full scope of the project and create a list of the work needing to be completed (like how many illustrations and how many pages). Be clear about deadlines for completion and any important target dates (like when should sketches and final art be finished, delivered, and approved).
- Be realistic and reasonable in your expectations of yourself and others, especially when setting those deadlines. Be comfortable knowing that any joint project requires healthy discussions and disagreements to reach a mutually agreeable decision. Depending on the project and division of the work, there are plenty of ways to approach producing work product. Writers and illustrators have their own processes. Talk this out and find what works best for both.
Copyright ownership
- Under US Copyright law, the default copyright ownership for contributors to a joint work is co-ownership of the copyright, unless otherwise agreed upon by the contributors. That means, each collaborator can independently, without the consent or knowledge of the other contributor, license or assign away their rights in the work to others. Again, and I underscore this, unless otherwise agreed upon by the contributors. The collaboration agreement must define ownership rights in the copyright. Will only one contributor own the copyright? Will each own it jointly? Or will each only own the copyright to their separate contributions to the joint work?
- If the writer is to own the complete rights in the graphic novel, then the writer will need the right to reproduce the illustrator’s art work. The grant of rights must be clear as to what territories, the time period, and for what purpose (book publishing, merchandising, movie and television).
- These decisions will affect how you approach many of the other provisions in your collaboration agreement – like how the final product is exploited commercially, how the material created can be reused once the agreement is terminated, can the parties publish work that competes with the collaboration, and how to tackle sequels or related work.
Editorial control and revisions
- How will creative decisions be made during the project? Who can authorize revisions? Who has final approval over the material when submitted to a publisher? How many rounds of sketches and revisions? These are just a few of the questions you and your co-contributor should explore.
Confidentiality
- Part of the information about the collaborative work and the collaborators themselves might need to be kept confidential. Decide what information needs to remain strictly confidential and what information can be used to fulfill the intent of the contract.
Competition
- As noted above, consider to what extent co-authors can publish work that competes with the collaboration and any relevant timetables (after publication of the collaboration? after termination of the project?). Be clear as to what defines a competing work.
Decision making
- The agreement should provide direction on how business decisions are made regarding marketing of the project, negotiating contracts, and signing licenses. Does one collaborator have the right to negotiate contracts while the other the right to veto decisions? Do both parties need to sign contracts with third parties? Who makes the decisions about marketing and signs those contracts. Who negotiates the agent contract? Who signs the publishing contract? Who is bound by the deadlines in the publishing contract? And who will handle sales and distribution agreements?
- You will not think of all the questions, but if you develop a general plan on how to handle these business concerns, you will avoid a host of problems in the collaboration later on.
Money
- Two things that raise havoc in any relationship – income and expenses.
- Decide how income is divided. Each person will have different financial concerns. Some might want a larger portion of the advance, but willing to forgo a larger percentage of the royalties. Maybe the income is split based on contribution. Or maybe one is paid a flat fee for their contribution in lieu of royalties.
- Decide how income is handled. Deposited into a joint bank account? Split into separate accounts? A percentage withheld to pay bills?
- Decide how expenses are to be authorized and paid. Set budgets and list specific expenses if known. Are expenses shared equally?
Attribution
- Who gets the credit? Come to an agreement ahead of time, instead of arguing over it later.
Future work
- Decide how to handle any future projects like a series, or a topic related to the original work.
Warranties and indemnities
- These provisions warrant a writer and illustrator have not violated any laws or ethics in the creation of his portion of the work (plagiarism, defamation, invasion of privacy, permissions secured, releases obtained, etc.). Indemnities are promises of reimbursement should those warranties be false. If you need more information on warranties and indemnities, see my earlier article.
- Things to consider are how will the legal responsibilities be shared or divided? It will be important for each collaborator to make representations as to the work they contributed to the collaboration. If the collaborators find themselves subject to a lawsuit like copyright infringement or defamation, who bares responsibility and the associated costs of a defense?
Term and termination
- The term of the collaboration agreement can be as short as the parties like, or more likely, as long as the copyright term covering the joint work.
- Other issues that might trigger termination: What if one contributor does not perform as expected? What if one contributor dies or is disabled during the collaboration? Does the survivor retain editorial and licensing control over the work? Who gets the deceased’s income? Is the income modified if the collaboration was not finished at the time of death?
Mediation/Arbitration
- Decide how the parties will resolve disputes.
Assignment
- What are the collaborators’ rights when it comes to assigning their ownership interest in the joint work and income.

This is nowhere near an exhaustive list. But it is a start. Every collaboration has different needs and concerns, so construct your agreement accordingly. If both parties take care of a few housekeeping items up front, it can mean the difference between a happy marriage and a miserable one.

Work-Made-For-Hire Agreement

For a writer who wants to own the rights completely to a graphic novel, a work-made-for-hire agreement is what you need.

Under the U.S. Copyright Act, the author of a creative work automatically owns the copyright. Whether you are a writer, illustrator, composer, visual artist, filmmaker, or anyone who creates a copyrightable work, as a general rule you control how the work is copied, published, licensed, and reproduced. Unless, however, the exception to the rule applies – “work made for hire.”

What is “work made for hire?”

When a copyrightable work is made on someone’s behalf, whether it is an employer or third-party, it is a “work made for hire.” Under the “work made for hire” exception, the person (or entity) for whom the work is created is considered the copyright owner of the work, not the actual creator herself.

When does a work qualify as a “work made for hire?”

Under the Copyright Act, creative work qualifies as a “work made for hire” if:

a work is created by an employee within the scope of the employee’s job; or
a work is commissioned or specially ordered that is from nine eligible categories and a “work made for hire” agreement has been signed.

Work created for an employer

If an employee creates a work within scope of her employment, the employer owns the copyright.

A “work made for hire” agreement is not needed with an employer. The assumption is an employee has agreed to this arrangement when accepting the job. For example, if you take a salaried job as a reporter for an online journal, the reporter is expected to know the online journal will own the copyright in the works created on their behalf. The courts consider salary and employment benefits a fair exchange for the copyright in the work created for the job.

Who is considered an employee?

In order to answer this question, the courts look at a variety of factors. The major ones include whether employee benefits are provided, whether social security taxes are paid, and if the employer has the right to assign additional project to the employee. If these factors are present, an employer would own the copyright to any work created on the job. Whereas, independent contractors or freelancers who are not paid benefits and pay their own social security taxes, and are able to accept assignment from other unrelated parties, are not considered employees. Accordingly, the independent contractor would own the copyright to any work created for the job.

How is “scope of employment” defined?

For a creative work to be made in the scope of employment, the work must be pursuant to the writer’s duties as an employee. Is the creative work what the employee is paid to do? Is the work created within the general work hours at the place of work? Is the work created in part to serve the employer? If so, then it qualifies as work made for hire under the scope of ones employment. For example, I wrote my first novel while working as a lawyer with a biotech company. I was not hired to write the book. I was hired as a patent litigation attorney. The novel was not written during work hours or to serve my employer. Accordingly, the novel would not qualify as a “work made for hire.”

Unless the employee and employer have agreed in writing otherwise, anything created outside the scope of employment is not a “work made for hire,” and the employee automatically owns the copyright. An employer can, of course, agree to transfer its copyright ownership in the “work made for hire” to the employee. This agreement must be in writing and signed by both employer and employee.

Work commissioned or special ordered

If a person or entity requested a non-employee to create a work (i.e., the writer requests the illustrator to create art work), that work is a “work made for hire” if the work is created under a written “work made for hire” contract and the work created falls within one of the following nine statutory categories:

Freelance contributors to collective works – articles written for collective works like magazines, newspapers, encyclopedias, websites, or anthologies.
A contribution used as part of a motion picture or other audiovisual work – screenplays.
Translations
Compilations – work created by collecting and assembling preexisting materials or data, like an anthology.
Instructional text
Tests
Answer material for a test
Atlas
Supplementary works – like forewords, afterwards, pictorial illustrations, graphic work, charts, maps, tables, appendices, and indexes. Basically, any work created to supplement another author’s work for illustrating, explaining, or assisting in the use of the underlying author’s work.

If the commissioned work does not fall within one of the above categories, a “work made for hire” agreement will usually not result in the work becoming one for hire. For graphic novels, illustrations fall within category 9.

“Work made for hire” clauses

When creating a work-made-for-hire agreement, here are a few elements, questions, and variables to consider.

Is there “work for hire” or “work made for hire” or “specially commissioned or ordered” language in the agreement?
Make sure the contract clearly defines the work to be created for the commissioning party. It is also helpful to include only one particular work in a contract. Avoid including language that ties future work or past work to the contract. Fallback language should be included that states the illustrator owns the copyright to the work should the commissioning party reject the work for any reason and not pay the agreed upon fee.
Work for hire illustrators who want credit for their art should request the commissioning party to give credit. Otherwise, the commissioning party has no obligation to credit the illustrator.
Make sure compensation is clear.

Graphic novel anthologies

Under the U.S. Copyright Act, the person who assembles the separate works can copyright the graphic novel anthology. The collective copyright allows the person to reproduce and distribute each contribution as part of the collective work. They also can revise the collection (like adding or removing stories) but they cannot modify the separate works unless the creators grant that right. If you are a contributing author/illustrator to an anthology, be clear if the agreement makes your creative work a “work made for hire,” and if you have given the collective author/editor the right to edit or revise the creative work. Decide in advance what rights you want to transfer to the person creating the collective work. Typically, most writers and illustrators retain ownership in the copyright to their work, but give the collective author the right to reprint their work in the collective. If the collective author wants the right to edit or revise, that should be clear in the contract.

Duration of a “work made for hire” copyright

Copyright protection for “works made for hire” last 95 years from the year of first publication, or 120 years from the year of creation, whichever expires first. In contrast, the duration of copyrights for authors and illustrators last the life of the creator plus 70 years.

Prudence dictates that you understand the provisions of a contract covering your creative work. Save yourself mountains of time and horrendous migraines by letting your agent guide you or hire a lawyer with publishing law experience to draft your collaboration or work-made-for-hire agreements.

Now…Hi-ho, Silver! Away!

Photo Credit: Thomas Shahan 3 | Visualhunt | CC BY

Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.

The Rise Of Graphic Novels