I swear I almost cry with joy for every time I see another person with some reason chime in to wild discussions like this. It's like finding a diamond when trying to walk through a shit tossing fight to get to the other side.
I need a drink, this has been mentally exhausting ._.
A bit of a tweetstorm has been brewing today regarding the Right of First Refusal clause in our Terms of Service. We're reviewing the language and will follow up soon, but wish to avoid a knee-jerk reaction. In the meantime, we'd like to clarify our intent and hopefully assuage some fears and negative assumptions swirling about.
The purpose of the Right of First Refusal is not to take any rights away or steal your content. The purpose is to help you. We've witnessed multiple creators on Tapas accept unfair, uncompetitive deals and sign away their rights for far less than their work is worth. Creators who should have been paid 10x what they were offered agreeing to terrible deals because they either did not know their market value or did not have any competing offers.
We have connections in traditional publishing, merchandising, tv, and film. Our intention is to work with creators to bring additional offers to the table, and to create competition in the market so individuals get the best deal possible.
We did a poor job communicating this and for that we're sorry. We will continue to listen to you and make revisions to the language over the next week. Please let us know if you have additional questions or concerns, along with any suggestions on specific language you'd feel more comfortable with. We won't be able to respond to everyone individually, but will read and take all of your feedback into consideration.
Team Tapas
Right of First Refusal clauses shouldn't be part of a free hosting platform's TOS. That's something a professional publisher includes in their contract when they agree to pay you in exchange for the right to publish your work. I don't have any such relationship with Tapas, so I should have no such obligation to them. I'll keep an eye out over the next few days to see if the clause is removed. This is not an acceptable term to slip into a TOS that affects everyone, even if a handful of users don't care or feel they're getting enough from Tapas to be worth it.
(@VermillionWorks - I didn't mean for this to post in reply to your comment, I just meant it as a general reply. Sorry about that.)
You don't help people by retrofitting your Terms of Service to take away their First Right of Refusal (something that other companies pay to have).
Nobody does that.
This reply isn't to bait you (I'm not a troll) -- but I think it's important that folks who are trying to make sense of this situation understand that this isn't business as usual, or that it's somehow in everyone's best interest. It's most certainly not.
If that is truly your intention then you're going about it all wrong. None of that requires you to force your users into a legal position where they are REQUIRED to give you first refusal.
If the intention is truly to help the users then set up a submission process and publicise it. Let any user submit things (like under the TOS as stands) but do NOT require that you legally automatically gain first refusal. Doing so makes it simply seem like you're trying to cash in on successful artists.
Edit: I'm a published artist btw. No one should give away first refusal right unless it's part of a contract that is very much to your benefit and NEVER blanket over the entirety of your work.
SECOND EDIT (as the mods have started limiting our reply abilities so I'll stick this here for visibility)
In short I just need to make two clear points:
Them offering more publishing options could be cool, you should not, however, give first refusal rights to anyone without a good publishing deal (even then it's not something I normally give away personally) or some other solidly beneficial contract.
Thank you so much for the response, Team Tapas! The lawyer whose been helping folks out on twitter and doing a great job explaining is @AkivaMCohen and he may be able to help y'all communicate what you're trying to do in more certain terms. He's an IP lawyer, and even if you've got lawyers (which I'm sure you do) he may be able to poke holes and find ways to make the legaleese less scary for everyone.
I think @cuppamatt has a really good idea. Submissions (even some opened for short terms) could be a lot more sane/less scary way of going about this.
My suggestion for specific language - Remove the clause in its entirety from the TOS, and instead include a section in your FAQ or help section telling creators who to contact if they would like Tapas to negotiate an offer for them. This way it's a choice instead of a requirement, but you can still fulfill your goal of helping creators avoid unfair and uncompetitive deals.
Yoon said they are checking the phrasing. And also explained what the actual intention is. To give at least one competing offer, so artist don't get scammed by OTHER comapnies.
The wording at the moment leaves a lot of intepretation in one or the other direction. So I would suggest to just wait with critism on the "rule", and just give feedback on the wording at the moment.
As soon as tapas has decided for a new, and more precise wording, we can better discuss the issue of the "rule" itself.
(Edited parts of my text.)
(Postedit: Yes, if it's actually forcing anyone to anything, it's troublesome. But as I said, I will just wait until the new wording comes out)
I run a Support group for UK based Comics Creatives (we have over 1200 members) I talk to conventions, printers, publishers, etc all the time and do a lot of work for artists in the UK with my fellow mods.
If Tapas want to put forward a way to help artists not get screwed over and provide them with another option for avenues to get their work out there to audiences where it can flourish then there's no one more for it than me. However, as this stands, this is not a good deal. If my comic were on Tapastic it'd be a hard pass from me right now. There is nothing more important to an independent creator than control over their own IPs and even things like first refusal can really make it difficult for you to effectively manage what is yours. I wouldn't recommend giving up first refusal to a comics posting portal.
Putting together a community supported free submission process though, that would be ace and I'd totally be interested in talking about that.
That seems so much more sensible to me... I mean first refusal right seems like a big thing that should be negotiate over a real contract...
Nothing against Yoon, but ...
First Right of Refusal is well understood. It's not some ambiguous concept. It's also not a phrase that you use accidentally -- it has artist value, financial value. It's also not something that ever belongs in a website's Terms of Service -- and that's the reason that artists are rebuking it. It's just not normal, ethical practice.
It's not the phrasing that needs to change: the entire clause needs to go. If Tapas wants to help creators negotiate, they can do that by offering an opt in service. That sounds wonderful.
This isn't that, though.
Okay, I see. So it's seems more troublesome than I thought.
However, I will still just wait for the next statement from tapas. I think they are willing to change it in a way that we desired, based on the feedback here.
To be honest, there is an opt in service, and this may sound rude, but its signing up for Tapas. The opt out is just removing yourself from Tapas.
You don't have to agree to these terms, and for the most part, most comics on this site aren't going to be their featured comics or heavily promoted given the huge amount of creators already on the site. This is only for if a publisher wants to work with you and your comic, and Tapas, if they see your comic as a gold mine, wants to have the chance to negotiate with you to see if they can make a better offer.
This isn't taking your rights away. All this is, is a business exchange to have more exclusive comics to their site to gain more traction, more readers, more users, and more creators.
But I can see how exactly people are concerned, angry, or outraged by this. This is a technique that can be used to prevent artists from getting with perhaps a better publisher or allowing their concept to flourish. But again, this is a dialogue you can have with Tapas if you are that concerned.
Let's wait a little bit more though, they just said here that they want to change things according to the feedback, and they were at least quick to respond and help us understand a bit more about what this "Right of Refusal" is and why they added it. So long as we keep this dialogue going, we can get to a place where everyone feels more secure
The main anger is that:
Though I do understand the reasoning, still this isn't the right way to go about it. We are the only ones who should have the right to do what we want with our intellectual property. However, you could instead encourage that creators contact you guys before we make that kind of decision.
Forgive me if I've misunderstood, but when I read the clause it sounded a lot more like "If you wanted to sell products on our website, let us know and we'll see what we can do, but we don't have to."
Please locate the portion of the clause where it indicates that any and all comics on the platform are incapable of making their own sales or interest on their titles outside of Tapas, because that's not at all what I got out of it.
People keep saying "It's a hosting site, not a publisher", but all throughout the announcements for the recent changes to Tapas, they've been saying "You can keep using this site as a host, but now we have publishing options as well." That.. that's exactly what they've said outside the clause, and that's exactly what it sounds like the clause was saying. Maybe I read it wrong, and if I did please correct me and let me know how. Buuuuut it looks like Tapas has MORE options for creators and everyone's pissed? Odd. Very odd.
Like, for example, in a month I'm gonna be selling buttons featuring details or characters from my comic at a festival, and Tapas has no fucking business in whether I do that or not, and I don't think they could do anything about it either. If, however, Tapas is claiming that if I am to sell content from my comic I post on Tapas in this festival that they'd delete or restrict my comic, then that is definitely a problem. But I don't think that's what the clause means- and if it IS, please explain how/why
Options are NOT the bad thing. Forcing legal first refusal rights on all content is the bad thing. That is not a small or insignificant thing or is it in any way required to be published, for them to offer you publishing options or deals.
Your first refusal rights are valuable and you should not be giving them up for the simple ability to post your comic to a website. Maybe as part of a publishing deal later down the line (it's not a right I've ever given up in my publishing deals but it's not unheard of in those circumstances) however those rights are not something you should give away for free to a hosting site. They're way more valuable than that, YOU're way more valuable than that and so is your work.
They may want that, but it's not fair for them to require it because they didn't pay me for that right. And this is the type of right that's normally only given in exchange for good money.
These are the circumstances under which I've given a third party the right of first refusal: a publisher agreed to pay me - upfront - an amount we both agreed on (in this case, an advance against royalties), and they also gave me professional level promotional services for the books I contracted with them, they did the book layout, they did the printing and covered all printing expenses, they hooked me up with promo opportunities, they give me the opportunity to be present and sell books and cons and book fairs at their table, they professionally edited my work, they submitted my work to reviewers, they handled my listings on third party sites like Amazon, etc. In exchange, I gave them the right of first refusal for sequels, spinoffs, movie deals, etc. using the same characters or universe.
Tapas is not giving me these services, so the rights they're requesting in exchange are not commensurate. Many of the people you see objecting to this are professional creators, myself included. And as @donathinfrye said, we object because we know the conditions under which that term would be acceptable. This is why people tell you to get a lawyer and/or an agent before negotiating any rights - because they know what's standard and fair for the industry. And this isn't. No other hosting site I know of includes this clause.
And also, almost all of us were a part of tapas before that clause was in the TOS, so it really wasn't an "opt in" in the way you're suggesting.
Tried to highlight the meat of the sentences for easier reading.
I'm not educated in legalese, but here is how I understand it:
"any and all comics" = "any conted posted on the platform"
"making their own sales" = "If user desires to sell (or) (...) exercise any rights (...) in any content posted on the platform"
and being incapable thereof = "user shall give written notice to tapas media of such desire (...)" = you HAVE to tell them, and "there shall be a 30 day period in which user will negotiate in good faith with tapas media" = so they can negotiate with you if they want.
"Right of first refusal" is an established concept. See the post above me by bob_artist for more details!
Edit: Sorry for tagging you, PotooGryphon D:
