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May 2017

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.

I understood the "if user desires to exercise any rights" as using it yourself (such as self-publishing), hence it being listed as an option next to selling and licensing? ("sell, license, exercise or otherwise dispose of") Again, I'm not an expert in this, but that's how I understand it purely from a grammatical standpoint, so correct me if I'm wrong.

And again, there's the ROFO/ROFR thing...

Right, that's what I thought they meant initially, which would be fine. And, I'd like to clarify who/what 3rd parties are considered as, other hosting/publishing sites? I would still retain the right to sell my own comic and comic related content by my own means without permission, correct?

That's true, the "exercise" bit does need clarifying. Like would it jeopardize self-publishing and printing your stuff on demand through Print Ninja or CreateSpace and the like?

I'm just gonna sit back and wait for more explanation from the staff.

This is not a good day for this discussion for me. I've got a sore throat and am feeling a bit loopy.

Even so - how is this going to change anything? They can't claim any rights on something they don't own. They are not my employer, so why should I notify them first if I decide to make my money on my own IP elsewhere?

Akiva Cohen explains the wording of the clause and yes it impacts self publishing and even devientive works like prints using the characters from the IP

I mean, I guess if this clause is still in effect when a creator wants to self-publish, said creator could easily just e-mail Tap and go

Creator: "Hi Tapas, I was thinking of doing a print-on-demand run of my series and selling the copies along with some merchandise. Since you have that whole clause thing going on, I thought you should know."

Worst-case scenario they ignore it, let the 30 days pass, you do your thing.
Best-case scenario they bankroll the whole thing while taking a little bit of the cut, royalties or whatever (which I'd imagine you would have a more detailed contract) but you didn't have to put in any money at all.

i was already doing that before the clause came into effect ... so really in a legal limbo, where does that lie? Thats why really it should be an opt in not an opt out.

I'm curious what the the penalty would be for breaking the TOS (IE not informing tap)? Normally from what I've seen if you violate the TOS of an app or website they just ban you from using said service. Which if that's the cause and this clause ONLY pertains to dealing with other publishers, I say screw it. I mean mostly the offering pub will have you sign an exclusivity contract (like featured artist on Webtoons) and you would have to delete the content you have on here anyway. Now if this clause covers self pub and merch or the penalty is legal action then I can see the problem with it being in the TOS. I guess we just gotta wait to hear back from the staff. Till then keep calm and read comics.

How do you get out of Tapastic without messing things up? Is writing an email to content@tapasmedia.co saying you are leaving as you do not agree with the ToS enough?