Fantagraphics Books, Inc. v. Ferris

[grubcubman]

I've been plotting some kind of blog post about the court case of Fantagraphics v. Ferris, but instead here's a forum post about it.

It's recently come to light (at least, in broader circles, it seems) that in 2021, Fantagraphics sued Emil Ferris over the publication of Book Two of My Favorite Thing Is Monsters. (I'm not clear on how widely this was known before Frank Santoro's recent Instagram story featuring a screenshot of one of the case filings.)

For legal purposes, the parties' relationship is memorialized in a January 2016 Publishing Agreement, a contract that sets forth each party's rights with respect to the publication of My Favorite Thing Is Monsters. The Publishing Agreement is available as the attachment to filing no. 2 here; all other relevant court filings are now available for free on the same site, and if you'd like access to any other filings, send me a DM and I'll access them.

The Publishing Agreement seems illuminating for several reasons:

• Ferris received a $12,000 advance.
• The Publishing Agreement required Fantagraphics to pay Ferris 50% of amounts received for: book club licenses, non-Fanta reprints, various other license publications, periodical publication, and e-books and digital version.
• It also required Fantagraphics to pay Ferris 70% of amounts received for foreign editions.
• On the issue of royalties, Ferris was to receive 8% of the suggested retail price (8% of $40 is $3.20 per book) for the first 25,000 copies sold and 10% ($4.00 per book) for copies exceeding 25,000. Royalty payments were to be split 85% to Ferris and 15% to her agent. These figures shift with quantity discounts and remainder sales.
  
• Accountings were required 90 days following every "accounting period" (i.e., January to June and July to December), and Fantagraphics was required to pay "any accounting period at the time it renders its accounting for such period."
  
• As relevant to the litigation, the Publishing Agreement required Fantagraphics to "keep full and accurate Book of account and other documents and materials relating to this Agreement." Ferris had the right to review the books (at her expense, during business hours) and to "make copies of all or any part" of the books. As with everything, the contract features additional specifics for various circumstances.

Generally, it seems unusual for this type of contract to be publicized in any forum, so this sample might be of interest regardless of its role in the litigation.

Anyway. A key point here is the way the work is defined in the Publishing Agreement. The parties agree that Ferris submitted to Fantagraphics (in late 2015) a 600-page manuscript for Monsters and that a book of that length wouldn't be marketable. Accordingly, they worked to turn the first large section into Book One of Monsters; it wound up being around 400 pages long. Ferris describes the other 200 pages as a "remainder," not the basis for Book Two. She says that of that chunk, something like 50 pages were usable for the second book.

With all of that said, the Publishing Agreement itself describes the "Book" simply as "a compilation of the Work in book form currently titled My Favorite Thing Is Monsters."

So. My Favorite Thing Is Monsters (Book One!) was published in February 2017. Through the rest of that year, Fantagraphics included announcements of Book Two in three catalogues (with three publication dates). Of course, Book Two didn't meet those publication dates.

The litigation doesn't communicate exactly what happened in the lead-up to litigation in 2021. Ferris asserted that she identified various irregularities in her royalty statements and sought accountings on three occasions; when she eventually hired KPMG to conduct the accounting, she says that Fantagraphics imposed unreasonable non-disclosure requirements (allegedly in violation of the Publishing Agreement). It's not clear to me how this led to the letter that Ferris's counsel delivered to Fantagraphics in February 2021, which stated:

We are writing to address serious concerns that our client has raised regarding Fantagraphics' intent to publish an unauthorized sequel to Monsters. In particular, we require your immediate assurance that Fantagraphics will not . . . publish or authorize publication of a sequel to Monsters.

Ferris's lawyer also sought an assurance that Fantagraphics would not publish the material that made up Ferris's "remnant" as a follow-up to Monsters. In this way, Ferris (through counsel) was suggesting that the Publishing Agreement gave Fantagraphics the right to publish only the work that became My Favorite Thing Is Monsters Book One.

In June 2021, Fantagraphics sued Ferris in the U.S. District Court for the Western District of Washington. Fantagraphics sought a "declaratory judgment," an order of the court confirming the publisher's right to publish Book Two of My Favorite Thing Is Monsters. The lawsuit emerged from Fantagraphics' view that the Publishing Agreement defined the "Book" it contracted to publish to include both Book One and Book Two. Because Book Two didn't then exist and Ferris couldn't be compelled to write and draw new pages for Fantagraphics, I read this as Fantagraphics asserting that it would publish the remnant pages of the original manuscript (plus anything else Ferris had submitted by then).

In August 2021, Ferris responded with counterclaims against Fantagraphics, asserting that Fantagraphics did not have the right to publish Book Two of My Favorite Thing Is Monsters. In other words, Ferris interpreted the Publishing Agreement to define "Book" as including only Book One of Monsters, not any subsequent volume. Ferris also asserted that Fantagraphics had violated several provisions of the Publishing Agreement (namely by failing to pay appropriate royalties, selling English-language copies in regions not contemplated by the contract, authorizing foreign-language reprints without the author's permission, failing to keep adequate books, and denying Ferris the right to audit the publisher's financial statements). I find some of the segments of Ferris's royalty statements surprising, but I also know very little about royalty payments. (For example, one statement showed Ferris getting paid around $1.34 per ebook for one accounting period, which seems very low. But what do I know!)

Importantly, in the ensuing two years, the Court never resolved any of the parties' claims. Neither Fantagraphics nor Ferris lost the case in the legal sense. Rather, Ferris delivered the book and the parties stipulated to a voluntary dismissal. (In other words, they settled.)

The closest the Court came to resolving any of these matters was in its denial of Ferris's motion for partial summary judgment. A motion for summary judgment is a procedural tool that can be used to resolve litigation before a case goes to trial. It asks the court to determine that no reasonable juror could resolve the case for the non-moving party. Here, Ferris asked for an order concluding that no reasonable juror could interpret the Publishing Agreement in favor of Fantagraphics. In its denial of that motion, the Court concluded only that a reasonable juror could find in favor of Fantagraphics. Importantly, no juror ever did find in favor of Fantagraphics, nor did the Court resolve the case in favor of Fantagraphics, nor did any jury ever even hear the case. The Court merely declined to resolve the case for Ferris early.

For me, an important thing to remember here is that in suing Ferris, Fantagraphics had the burden to prove that the Publishing Agreement as a legal document gave it the right to publish Book Two.

Here are a few more notes:

• Ferris initially had one of the best law firms in the country but had to switch counsel in light of mounting legal fees (which she acknowledged in her filings).
• We don't know how the Court might have resolved Ferris's breach claims. We do know that Ferris did some amount of "discovery," which allows the parties to review non-privileged materials relevant to claims and defenses in the case. Counsel for Fantagraphics also suggested that Ferris intended to "drop" certain claims, though it didn't indicate which claims.
• The case very well could have felt like a loss for Ferris, even if not in the legal sense. Based on the proceedings and the timeline, I could see legal fees reaching $100,000. That's just speculation though. And she ultimately wound up submitting the book to Fantagraphics anyway.
• Finally, I continue to find it so striking that Fantagraphics suggested it would publish a segment of work that Ferris didn't want to have published.
• Finally finally, there's probably a lot more to say here.
• Please let me know if you have questions about the legal stuff; as far as the industry stuff or the creative stuff, I'm an idiot.
  

[whitecomics]

Indeed a lot to unpack here. Thanks for a good and thorough post.

I tend to agree that one important piece is the simple fact of a full, recent Fanta book contract being publicly available. Any current or prospective Fanta authors would probably be wise to compare their terms and percentages against this example...

 
I haven't read all the legal docs, I'm sure I wouldn't understand them completely if I did, but I was intrigued by this tidbit from Ferris' initial counterclaim: 

Fantagraphics also authorized third parties to reprint Monsters Book 1 on demand without Ms. Ferris' approval...on information and belief, Fantagraphics worked with other publishers, including but not limited to Ingram--a publishing and print on demand company--to publish unauthorized copies of Monsters Book 1.

So in other words, Fanta reprinted Monsters with IngramSpark? The same POD service you and I and any other idiot can use? Or does Ingram have some fancier POD service for publishers, that allows greater fidelity to the original print run without common hallmarks of POD like blank inside covers?

A small tangent, definitely, but one that struck me.

[arecomicsevengood]

A couple things: Ferris now has a contract with Pantheon for two books, a prequel to My Favorite Thing Is Monster and a separate, unrelated book. Presumably, Ferris would have wanted Book Two to come out from Pantheon as well, which would pay better.

I don't think it was ever seriously suggested that Fantagraphics would publish an unauthorized sequel based on the remainder of the manuscript. The things that I saw suggested Ferris was working on Book Two, but there was a certain timeframe established, and Ferris said she couldn't work on finishing Book Two while traveling and promoting Book One. I have a degree of sympathy for Ferris' position here, though that's also just part of the game of how publishing works. I'm interpreting a lot of the lawsuits as an attempt to compel Ferris to produce Book Two in a reasonable amount of time so as to ensure sales.

I don't really agree with Ferris' premise that Fantagraphics was only entitled to publish Book One either. At a certain point one sort of has to assume a certain degree of disingenuousness as lawyers become involved.

It must be a bit of a bummer to feel like one is losing money by being saddled with a publisher while another publisher with more money is interested, to then feel like the amount you stand to gain is worth the lost legal fees, but to just have to settle after having lost that money would be nauseating.

[arecomicsevengood]

Sept 26, 2023 1:05:18 GMT whitecomics said:

I was intrigued by this tidbit from Ferris' initial counterclaim: 

Fantagraphics also authorized third parties to reprint Monsters Book 1 on demand without Ms. Ferris' approval...on information and belief, Fantagraphics worked with other publishers, including but not limited to Ingram--a publishing and print on demand company--to publish unauthorized copies of Monsters Book 1.

So in other words, Fanta reprinted Monsters with IngramSpark? The same POD service you and I and any other idiot can use? Or does Ingram have some fancier POD service for publishers, that allows greater fidelity to the original print run without common hallmarks of POD like blank inside covers?

What's the possibility that Ingram, as a distributor, essentially has that sort of thing in their contracts as boilerplate as a way of dealing with OOP books?

EDIT: Of course this might not make sense as comics do go OOP but for dealing with prose books, especially at larger publishers, I could see it being the standard.

[grubcubman]

One more thing for the moment: We don't know what the publishing contract for Book Two looks like. Maybe it's being published under this contract, but they also could have signed a new deal for it as part of the settlement. The latter seems likely, though these could be standard royalty percentages for Fantagraphics.

[bayls171]

There's a lot to be said about this - but the strangest part to me is the argument over the "remnant" of the 600 page manuscript. Ferris and Fantagraphics signed a deal in Jan 2016, with book 2 originally slated for release in late 2017. From my memory at the time, the book was originally advertised as Fantagraphics described, essentially 600 pages was too big to publish as one book, but volume 2 is already done so it will be coming out soon after. This lines up with the release date claim. Additionally, in their lawsuit they're explicitly seeking permission to publish the remaining pages of the original manuscript if Ferris can't give them the "polished" version as per below;

While Fantagraphics would prefer to publish Ferris’ promised “polished” version of Book 2, if she continues to refuse to deliver that version Fantagraphics is ready, willing and able to publish the second half of MONSTERS – Book 2 – as Ferris in 2015 submitted it for publication under the Publishing Agreement. The goal and necessity of this action is to ensure that Ferris’ last-minute claim that Fantagraphics does not have the right to do so is removed as a litigation-threatened barrier to that publication.

My point is that Fantagraphics clearly believed that the remaining 200 pages of the manuscript were publishable as a book, right? They've worked with artists for 40 years - they would surely have known that if only 50 pages were actually usable the book wouldn't be ready in a year? (if its being published in late 2017 it would have had to be done by early 2017 at the latest.. giving her a year from signing the agreement to make what, 200 pages at least?). Additionally, Ferris must have agreed to this schedule as well (she signed the contract) so presumably she either thought the second part of Monsters was publishable as a book? Or.. that she could write and draw a whole 200-400 page book in a year..?

It's a weird discrepancy between the two stories that I can't quite get over. Did Ferris feel the rest of the manuscript was inadequate and change her mind after the first book was so successful? Did Fantagraphics pressure Ferris to sign the agreement despite her feeling that she wouldn't meet the deadline, and if so why would Fanta put that pressure on her? Is she changing the story because she just wants to go to a different publisher? Was Fanta just bluffing about publishing the remaining 200 pages in the lawsuit, and just hoped Ferris would be scared into submitting a finished manuscript? What if they won lol. Or am I just overestimating how long it would take Ferris to write and draw the second book? A lot of alt cartoonists take a long time but if she's releasing 3 books in the next few years idk maybe she works really fast and the original remains of the first manuscript IS unusable

Like I said there's a lot more than that to talk about here - getting fixated on this point probably isn't helpful - but it does stand out to me. Anyway 7 years later the solicited book is about 400 pages long. Ferris has either made another 200 pages for it or done a full rewrite and made almost an entire extra 300-400 pages. Have the extra years helped Ferris to make the book much better than it otherwise would have been? I hope so, but ultimately I doubt we'll ever know.. its not like either party would actually put out that 200 page "remnant" on its own for us to study

[BubblesZine]

Thanks for the informative post barackobeagle. Hard to make sense of all the legal stuff. And we'll never know the full story... but interesting to see some.

The 2021 timeline does maybe make sense to one thing I had been wondering about. At the MCA show "Chicago Comics: 1960s to Now" (Jun 19–Oct 3, 2021), Ferris had sculptures up but it was the one thing in the show you couldn't take a photo of (at least you couldn't on that opening day, there was signage). You can see it in this video though at 11:19 mcachicago.org/publications/video/chicago-comics-1960s-to-now-exhibition-tour

[whitecomics]

Sept 26, 2023 1:10:42 GMT arecomicsevengood said:

What's the possibility that Ingram, as a distributor, essentially has that sort of thing in their contracts as boilerplate as a way of dealing with OOP books?

EDIT: Of course this might not make sense as comics do go OOP but for dealing with prose books, especially at larger publishers, I could see it being the standard.

This seems conceivable, yes -- certainly that Ingram would require this from publishers (and publishers in turn from their authors) and likely that it happens for OOP prose books that do unexpectedly well. At least as a stopgap measure until a new, real printing. Totally guessing here, maybe someone can chime in and clarify if this ever happens.

But yes, we all know comics go out of print all the time and I feel like someone would have come across a Fanta POD book if they've ever done this. It would be surprising, given their general commitment to good printing, etc!

EDIT: rereading the legal snippet I posted above, I guess it's not 100% clear if POD Monsters actually appeared or if the contract just allowed for this possibility. It does seem like Ferris('s lawyers) believe POD books were actually printed.

[Scott Gerard Ruhl]

Sept 26, 2023 13:11:51 GMT BubblesZine said:

Thanks for the informative post barackobeagle. Hard to make sense of all the legal stuff. And we'll never know the full story... but interesting to see some.

The 2021 timeline does maybe make sense to one thing I had been wondering about. At the MCA show "Chicago Comics: 1960s to Now" (Jun 19–Oct 3, 2021), Ferris had sculptures up but it was the one thing in the show you couldn't take a photo of (at least you couldn't on that opening day, there was signage). You can see it in this video though at 11:19 mcachicago.org/publications/video/chicago-comics-1960s-to-now-exhibition-tour

Incredible video! Thank you for posting this! 

[luke]

It's very common for publishers of prose books to use POD for backlist titles (pretty much any book older than a year or so). They'll even pulp existing stock and switch to POD because it's cheaper than warehouse storage, even though the margins on POD are a lot worse. Most readers probably don't notice or care, but if that kind of quality matters to you it's pretty obvious what's POD (and usually there's a QR code on one of the last pages), even as POD has gotten somewhat better in recent years than what it used to be. And that's talking simple black-and-white text-only books.

I can't imagine Fanta ever sold Monsters in POD form, though. I remember reading one of the Fanta head honchos badmouthing POD at one point, plus it would be prohibitively expensive for a big full color book like Ferris's, to say nothing of the quality. Maybe for some review copies, but even that I doubt.

[PumpkinBucket77]

Looking at the case info, it appears like Ferris' lawyers weren't able to produce any records, facts, or evidence of POD copies on Monsters. Given that the folks from Fantagraphics have been outspoken against POD, it is highly unlikely that this was true.

[pentimento]

bleedingcool.com/comics/fantagraphics-reports-emil-ferris-made-half-a-million-in-royalties/

"Fantagraphics Reports Emil Ferris Made Half A Million In Royalties"

[robindh]

Nov 25, 2023 2:41:24 GMT pentimento said:

bleedingcool.com/comics/fantagraphics-reports-emil-ferris-made-half-a-million-in-royalties/

"Fantagraphics Reports Emil Ferris Made Half A Million In Royalties"

That sounds like a lot. That's a lot, right?

[pentimento]

Nov 25, 2023 15:13:09 GMT robindh said:

Nov 25, 2023 2:41:24 GMT pentimento said:

bleedingcool.com/comics/fantagraphics-reports-emil-ferris-made-half-a-million-in-royalties/

"Fantagraphics Reports Emil Ferris Made Half A Million In Royalties"

That sounds like a lot. That's a lot, right?

Well, I wouldn't kick $500,000 out of bed, if you know what I mean.

For perspective, it's "Daniel Clowes Productions, Inc." stated yearly revenue. It's half of what he paid for his house 15 years ago, or a quarter of its current worth.

It's a third of what Chris Ware paid for his house a couple years ago.

It's probably the average selling price for an original Dark Knight Returns page (is that why Buenaventura killed himself?)

It's about 200 times Joe Matt's net worth.

I don't even like Ferris's work. Beautiful drawing, absolutely, but barely comics. Hardly any panel-to-panel sequentiality. It's a picture book for adults. ZZZZZZZ.

[awfulquiet]

Nov 26, 2023 0:38:34 GMT pentimento said:

Nov 25, 2023 15:13:09 GMT robindh said:

That sounds like a lot. That's a lot, right?

I don't even like Ferris's work. Beautiful drawing, absolutely, but barely comics. Hardly any panel-to-panel sequentiality. It's a picture book for adults. ZZZZZZZ.

I knew we could find common ground on something if we tried. I know book 1 got lots of critical praise and accolades, but it didn't hit me until the book 2 announcement just how many friends of mine apparently absolutely adore her work and I was shocked.