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An Overview of Critical Legal Issues For Cartoonists, Part 2

© Stu Rees

This is the second installment of a multipart article directed toward the aspiring cartoonists among you.

The information in this article is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. In addition, neither the exchange of information nor the response to an e-mail or other communication establishes any attorney-client relationship.

Every cartoonist needs to know quite a bit of law. Simply put, you are not in the business of selling cartoons. Rather, you are in the business of selling the legal right to use your cartoons. Not knowing how to protect your rights will lower your income.

Nondisclosure Agreements ("NDA")

Nondisclosure agreements and confidentiality provisions are my pet peeve. While NDAs may serve a useful role among engineers or in high finance, companies rarely divulge big secrets to freelance cartoonists.

The obvious risk to a signing an NDA is that you will accidentally breach it and get sued. The hidden risk is that an NDA creates a weapon that the holder can wield in a lawsuit. For example, if you sue or are sued by the holder over any unrelated issue, the odds are high that the buyer will falsely accuse you of breaching the NDA. The cost of defending the case will bury most cartoonists, and lawyers know this.

Therefore, make sure that your buyer gives compelling business reasons for both the scope and expiration of the NDA. For example, if you are working on a product before its public launch, the scope of the NDA might be as broad as maintaining total secrecy but the expiration should be upon public announcement.

Watch out for NDAs from fly-by-night Internet sites that disclose their business plans to you in an effort to entice you into accepting stock in lieu of cash. A cynic might observe that the buyer's need for the right to sue you is based on its inability to pay you. You lose twice.

Also, if a buyer won't agree to a reasonable scope and expiration, you may have a paranoid buyer, which is exactly the wrong person to enable to sue you.

Rights of First Refusal Rights of first refusal on your future creative ideas need to be limited in both the field (i.e., cartoons, plays, novels) and the subject matter.

For example, United Feature Syndicate might legitimately want a right of first refusal from Scott Adams both in the field of comic strips (regardless of the subject matter) and for the subject matter of workplace humor (for all fields). But dramatic plays about WWII should not be covered.