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May 2017

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:

  1. It was added to the TOS with no warning or explanation
  2. "First Refusal" is a significant thing to give to someone and not usually something that you should consider giving away for the simple ability to post to a content aggrigator
  3. For all the explanation of "we don't want you to sell yourself short" giving away FR for free is the total opposite of that
  4. None of what they state as their reason requires legal first refusal rights

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:

@Devika Right, when I read "On the platform" I immediately thought they were referring to the option to sell content on their website, but it was indicating which content, not where. That makes sense. If that's the case, then that is a problem and I'll likely be taking my comic off of the website.

Sorry Tapas, but my comic is my comic, not yours. If this clause is staying in effect TO THIS effect, you're about to lose... pretty much every creator that uses this site purely as a host. Big mistake.

The only way I'm staying is if this is an option for your own site, not a requirement for my content that doesn't belong to you.

I am sorry for how I phrased the opt in solution, and I understand completely that this wasn't originally here before.

However, even though I fully understand this concern, to me this is all a big knee jerk reaction that could be solved if just worked and talked with Tapastic. Maybe I'm being completely naive, but I feel like most people here are running more on emotion than logic, based on the tweets and forum posts I've seen.

Again I won't deny that this is a legitament concern, it is very valid. I do understand your point. However, Tapas is starting to become a publishing site by the look of things, with the way things are going, and perhaps they'll start offering better things more steadily to help compete.

But this is coming from someone who has yet to be published, and works as a college student, so I'm probably just speaking out of my own ass here, and I'm sorry if I am.

I just wanna make sure we don't cause more problems than solutions, and help us stay level headed.

I don't think @bob_artist is being emotional, it sounds like he knows what he's talking about, since he's a published creator (I believe he mentioned that). If Tapas really did just lock everyone hosting on this site into a contract and basically snag the right to reject 3rd parties to your content, there's nothing ethical about that. That's not what you signed up for, and honestly the only people who would be cool with that is people who had intentions of selling exclusively with Tapas to begin with. Literally no one else should be cool with this

The reason for this "knee-jerk reaction" is that professional artists have dealt with things like this and worse before. Tokyopop quite notoriously left creators in legal limbo, and even Tapastic has their own checkered past before they changed their name from Comic Panda. If I as an artist retain full rights over my comic, there is no place for a "first right of refusal" on Tapastic's part. The rights are all mine. And if they aren't, then the terms of service should not claim that they are.

But to refer to the previously bolded text again "If user desires to sell, license, exercise or otherwise dispose of, indirectly or directly, any rights or any interest in any content posted on the Platform..." that would mean you selling your rights. So in a theoretical offer one would get for this clause to come in effect, you would have to be willing to sell/give the rights of your content to another party before Tap even wants to be alerted.

This still stays the same. You aren't handing over the rights of your content to Tapas.

Hey guys, so while checking things when replying to NagashiKhan I checked this stuff on the web's most trustworthy source, Wikipedia2. And it has me confused, because it seems to me that the TOS here have confounded Right of first refusal and Right of first offer.

"An ROFR differs from a Right of First Offer (ROFO, also known as a Right of First Negotiation) in that the ROFO merely obliges the owner to undergo exclusive good faith negotiations with the rights holder before negotiating with other parties. A ROFR is an option to enter a transaction on exact or approximate transaction terms. A ROFO is merely an agreement to negotiate."

Here is an example (from Wikipedia also):

"ROFR: Abe owns a house and Bo offers to buy that house for $1 million. However, Carl holds a right of first refusal to purchase the house. Therefore, before Abe can sell the house to Bo, he must first offer it to Carl for the $1 million that Bo is willing to buy it for. If Carl accepts, he buys the house instead of Bo. If Carl declines, Bo may now buy the house at the proposed $1 million price.

ROFO: Carl holds a ROFO instead of an ROFR. Before Abe can negotiate a deal with Bo, he must first try to sell the house to Carl on whatever terms Abe is willing to sell. If they reach an agreement, Abe sells the house to Carl. However, if they fail, then Abe is free to start fresh negotiations with Bo without any restriction as to price or terms."

So basically, the TEXT of the terms suggests a ROFO, but the title is ROFR? Could we receive a clarification on which of these two it really is, before we continue the discussion?

I understand that he isn't being emotional, what I'm saying is it feels like it's just this typical "Big business is bad business" sort of reaction. I fully understand this man is a professional in his field, but I know that even though this is a justified response, seems a bit blown out of proportion. We just got notified of this.

I really doubt they actually locked people in, but if they did, then yeah I agree that's really shady. But again this thing just came up today and they even admitted that they probably didn't word this new addition to the terms of service properly. So we don't know all the facts yet. That's my reason for saying this is a knee jerk reaction if you will.

But this has allowed us to get a response from the staff, and hopefully a chance to create some dialogue and get a better understanding of things. My point still stands is we should be more moderate about this and not jump the gun completely from tapastic.

This could very well be the case from how they are explaining things.