A Mirror, Darkly…

Something that’s common practice (or at least used to be) in the webcomics world was the idea of “mirroring” your comic, i.e. voluntarily hosting your content on several different sites for the purposes of maximum exposure, as if you were casting several fishing lines with the same bait into a lake.

That might not be a perfect analogy, so let’s get more literal. Let’s say I have a comic named Gorblunk which I host on my website at Gorblunk.com, but in order to try to get as many eyeballs as possible I also decide to host it at Comixcapacitor.com, which I register a free creator account at and in return receive a subdomain of “gorblunk.comixcapacitor.com” to work with. I set things up so that I automatically or manually repost new pages of Gorblunk on the Comixcapacitor site as well as my home site in hopes that Comixcapacitor’s own promotional efforts and potentially far larger userbase will help Gorblunk become a known thing. Meanwhile those who choose to read Gorblunk on Comixcapacitor are helping Comixcapacitor also be a thing.

Of course as an independent creator I am very concerned about my intellectual property, so before registering I make sure to check that the Terms of Service I’m agreeing to do not grant any rights to Comixcapacitor beyond that necessary to duplicate the content I’m posting. The copyright, etc., remain my own, and nothing is notated as exclusive. I can continue to post Gorblunk at my home site. In fact I could also register at Comixcavalcade.com and host my content in all three places. Mirrors, mirrors, everywhere, with no strings attached. Everyone wins.

So if you were paying attention to the little subculture of webcomics creators this past week, you might begin to understand the blow-up that resulted in several creators deleting their comics and accounts from the hosting site Tapas. The bone of contention was, to my knowledge, first publicized via Michael Kinyon’s Twitter and spread rapidly from there, concerning an unannounced addition by Tapas to their Terms of Service:

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 (the “Offered Right”), then the user shall give written notice to Tapas Media of such desire. Commencing upon Tapas Media’s receipt of such notice there shall be a 30 day period in which user will negotiate in good faith with Tapas Media for Tapas Media’s acquisition of such offered rights. If by the end of 30 days no agreement has been reached or if at anytime Tapas Media declines interests in the offered rights, then the user shall be free to negotiate elsewhere with respect to such offered Right.

This sort of contractual clause is better known as a “Right of First Refusal,” and in practical layman’s terms it would mean that if I was approached by Nickolodeon to do a Gorblunk cartoon, I would not be able to say yes to that deal unless I first contacted Tapas to ask if they were interested in making a Gorblunk cartoon. Then they have thirty days to negotiate their own offer with me. If I did not do this and arranged the adaptation rights with Nickolodeon regardless, Tapas could then sue for damages.

It’s not uncommon as a contract clause and is less binding than it might seem (all the creator basically has to do is run out the clock saying “no”), but it’s unusual to include in a Terms of Service for the free section of a hosting site, particularly one that otherwise assures creators that their copyright is retained (though remember my warnings on that). More than that, this was a clause inserted post-launch, after many, many creators had already signed up, and it doesn’t seem like the change was publicized with an opt-out offered. Just about every company reserves the right to change their TOS at will, but this globally modified a relationship between creators and third parties that was not part of the original agreement. What was weirder was that when Tapas got called on it, their official response was as follows:

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.

Now that sounds great, but if the purpose was education and protection, why was it so surreptitious? It seems like the kind of clause a creator who had signed up with Tapas mirroring three years ago would only find out about when Tapas sued them for signing that (indeed possibly terrible) Nickolodeon deal, which they didn’t even know they needed to check in about. This is baked in to the idea of Right of First Refusal: the aggrieved party has no legal power to undo a deal after the fact, only receive damages.

Even if you accepted Tapas’ rationale, the backdoor change could certainly give pause as you’d wonder what other sort of silent changes (for your own good) Tapas might make in the future. But a TOS isn’t really the same thing as a signed contract, so there was one easy way out for anyone made uneasy: cancel your registration and delete your comic from their site, and many (including Brad Guigar) ended up doing just that. Tapas later removed the offending clause, but the damage was done.

There was a share of snark from certain quarters that creators were overreacting or that in most cases the IP in question was worthless anyhow so why bother being so protective of it? Well, I imagine you can imagine my response to some self-righteous butthole telling me Zombie Ranch is worthless. Do I make a living off of it at this time? No. Might that change in the future, at which point I would sorely regret not being more protective? It might, and not just webcomics but the entirety of the creative arts are littered with horror stories empirically backing up that scenario. Even something as seemingly innocuous as letting your buddy film a movie based on your IP in his backyard could severely impact chain of title and tank potential deals years or even decades down the road.

It’s easy to go overboard in the other direction, of course, like the people so afraid for their million dollar idea they want you to sign on to their comics project without telling you what it is, but the idea of due dilligence where it matters — and where terms limiting the potential future interactions of one or more parties are involved, it always matters — should never be scoffed at.

Perhaps the Tapas controversy is a sign that the happy-go-lucky age of free mirror hosting is ending. We never really indulged in it ourselves, mostly since it never seemed worth the effort in our case. But whatever else, it’s a reminder to closely review your TOS agreements with hosting sites — and now, unfortunately, to check in on those agreements from time to time and make sure that your mirror hasn’t gotten darker while you weren’t looking.