Posted in: Comics, Comics Publishers, Current News, Fantagraphics | Tagged: Emil Ferris, My Favorite Thing is Monsters, Pantheon

Fantagraphics Sued Emil Ferris Over My Favorite Thing Is Monsters

Fantagraphics filed a Complaint for Declaratory Judgment against Emil Ferris over My Favorite Thing Is Monsters Vol 2. They have now settled.

Publication of the graphic novel My Favorite Thing Is Monsters by Emil Ferris wasn't easy. The original planned publisher, Other Press, said it was too large and could not correctly market it. A 700-page volume, picked up by longstanding graphic novel and comic book publisher Fantagraphics, was split into two. The first print run, for 2016, was seized at the Panama Canal due to the freight company, Hanjin Shipping, having gone bankrupt, and eventually published in 2017, followed by a fast second print run of 30,000 copies, the largest second printing Fantagraphics had ever done. In March 2017, Sony Pictures won an auction for the film rights to the work, which was translated into French and published by Monsieur Toussaint Louverture and Éditions Alto, in Italian by Bao Publishing, in Spanish by Reservoir Books, and in German by Panini.

It did really well. My Favorite Thing Is Monsters won the 2017 Ignatz Award for Outstanding Graphic Novel and two 2018 Eisner Awards. The French edition won the ACBD's Prix de la Critique and the Fauve D'Or at the 2019 Angoulême International Comics Festival. Critics declared it one of the best graphic novels of 2017. But the second volume was repeatedly delayed.

Fantagraphics Original June 2021 Complaint for Declaratory Judgment

In their complaint for a declaratory judgment, Fantagraphics asserts in January 2016, after agreeing to publish  My Favorite Thing Is Monsters "the parties agreed that MONSTERS was too long to be successfully published in a single volume and that it would therefore be published in two separate volumes" with the publication date of Book 1 to be February 2017, they "further agreed that Book 2 – the second half of the manuscript Ferris submitted in 2015 – would be published in July 2017. With no objection from Ferris or Bemiss, Fantagraphics prominently announced that July 2017 publication date for Book 2 in its catalogue for that publishing season." And "Fantagraphics began granting licenses to various foreign publishers to publish both separate volumes. Numerous such licenses, which specified the separate publication of Book 1 and Book 2, were granted, and separate advance payments for each volume were received by Fantagraphics."  But that "In early 2016, more than a year before the agreed publication date for Book 2, Ferris advised Fantagraphics that she wanted to edit somewhat (here 'polish') the second half of MONSTERS before it was published on that agreed date, promising that she would deliver her polished version to Fantagraphics in time to have the book published then. Fantagraphics agreed to Ferris' editing request for an opportunity to 'polish' a work that was already complete and accepted and under contract (the Publishing Agreement) for publication. However, Ferris failed to meet the agreed deadline, thus thwarting the scheduled July 2017 publication."

Furthermore, according to that June 13, 2021 complaint filed by Fantagraphics, "Until very recently, Ferris never suggested that Fantagraphics did not have the contractual right to publish Book 2. Instead, at different times, she blamed her failure to deliver the promised version on her mental and/or physical health, on a defective computer, and on her claimed need to generate other income. But lately, for the first time, mostly through her newly-acquired lawyers, she has claimed that Fantagraphics does not even have the right to publish Book 2. And it is that claim that has compelled Fantagraphics to bring this action for a declaratory judgment establishing its right to do so."

According to this complaint, in February 2021, Fantagraphics received a cease and desist letter from these lawyers, titled "Cease and Desist From Publishing Unauthorized Sequel to My Favorite Thing Is Monsters," which informed Fantagraphics that "We are writing to address serious concerns that our client has raised regarding Fantagraphics' intent to publish an unauthorized sequel to Monsters" and that "We have reviewed the Agreement, and it does not grant rights to Fantagraphics to publish a sequel to Monsters. The Agreement by its express terms pertains only to the Monsters book."

Fantagraphics denied the book is a sequel in its original June 2021 complaint, stating "the word and the concept of a 'sequel' to MONSTERS was never once used in any of the prior five plus years of communications between the parties and Fantagraphics never once expressed any interest or desire to publish a 'sequel' to MONSTERS." And state, "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."

Fantagraphics also stated "In all those years, it has never before sued any of its authors and it reluctantly does so now for the first time, and only for a declaratory judgment confirming its legal right to publish a book that the defendant submitted to it for publication and agreed by contract to that publication."

Emil Ferris August 2021 Answer to Complaint and Counterclaim

Via her attorneys, Emil Ferris then submitted an answer to the Fantagraphics complaint and a counterclaim in August 2021, asserting in their response that as "This case involves a publisher, Fantagraphics, bullying its breakout star author, Emil Ferris, into giving it a second book to which it is not entitled. The purpose of Fantagraphics suit is clear: Fantagraphics knows Ms. Ferris, an individual author and artist, will struggle to pay legal fees for this litigation. Every dollar she spends here comes directly out of her personal pocket. Fantagraphics is betting this extra pressure will force Ms. Ferris to give in to its demands before it is held accountable for its own breaches."

This August 2021 answer and counterclaim further alleges, "Fantagraphics has been taking advantage of Ms. Ferris for years. As early as 2017 she began noticing anomalies with her royalty reports. She later learned that Fantagraphics is selling English-language books in 13 countries outside the rights granted to it in the Publishing Agreement. It has consistently underreported and underpaid her royalties even on authorized sales. When she asked questions, Fantagraphics patronized her and deflected the requests. And when she requested an audit—as is her right under their agreement—Fantagraphics stalled and stonewalled."

The answer document also claims that "Fantagraphics desperately wants Ms. Ferris' next book. By its own admission, it has been advertising the book for years. At first, Ms. Ferris simply had difficulty finishing the work while juggling promotional events that Fantagraphics asked her to attend, which included a grueling series of international tours, comic cons, and interviews. But later, Ms. Ferris suspected that Fantagraphics was lying to her and underpaying her. She requested an audit to investigate these issues and has been clear with Fantagraphics that she would only discuss the terms for publication of Book 2 (if at all) after the accounting and resolution of any issues it uncovers. The shortest path for Fantagraphics to Book 2 was to allow the auditors Ms. Ferris hired to review Fantagraphics' records as the contract stipulates. If the audit revealed no issues, Ms. Ferris' concerns would have been settled and the parties could have moved on. Instead, Fantagraphics fought the audit then filed this lawsuit."

As for the eventual publication of the second book, the answer document claims that "The parties' existing contract, on its face, covers only one book. Though Ms. Ferris always intended there would be a second book and the parties discussed and planned for it, they never negotiated the terms around its release. And after four years of Fantagraphics' breaches and obfuscation, Ms. Ferris is no longer comfortable moving forward without a full accounting, and sufficient additional contractual assurances and reinforcement to protect her in the event Fantagraphics pulls the same tricks with Book 2."

The August 2021 answer document adds, "Keeping the agreement vague benefited Fantagraphics because it gave the company room to back out if the first book had been unsuccessful." And that Ferris "communicated that she was in the process of writing Monsters Book 2 and that any remnant of Monsters Book 1 in Fantagraphics' possession would not necessarily be a part of Monsters Book 2.  Fantagraphics knew that the Monsters Book 1 remnant was not Monsters Book 2, and that Monsters Book 2 did not exist at the time the Parties signed the Publishing Agreement.

The answer document further asserts that Ferris "launched a GoFundMe Campaign three days after the original publication date for Monsters Book 1 in November 2016 to raise money for drafting Monsters Book 2. In exchange for a donation, Ms. Ferris offered to draw donors as minor characters in Monsters Book 2. Fantagraphics knew about the GoFundMe page and therefore understood that Monsters Book 2 was still incomplete in the fall of 2016."

Correspondence between Ferris and Fantagraphics publisher Gary Groth is also listed in this August 2021 answer document. "In 2020, Ms. Ferris again emailed Fantagraphics asking 'why on this statement you have sent me that is dated 02-19-2020, do I see something called Book2 being sold by you when I have not authorized the sale of anything called Book2?' Ms. Ferris reminded Fantagraphics that our contract does not include any provision for a 'Book 2' and asked them to cancel all payments she had received for 'Book 2.'"

The answer document also cites an agreement that Ferris would receive "8% of the retail price on all copies of each book up to 25,000 sold, and 10% of the retail price on all copies of each book sold in excess of 25,000" as well as her agent emailing Gary Groth in 2018 saying that Ferris would be "very disappointed–and frankly also suspicious" in regards to "a $13,000 royalty payment following Monsters Book 1's stunning success in the first half of that year (by one public estimate, retail sales of the book topped $2.8 million during that same period)."

Regarding publishing territories, the August 2021 response claims that "Fantagraphics has the right to print, publish, and sell the English version of Monsters Book 1 only in the United States of America, the Philippine Republic, Canada, and the British Commonwealth.  On information and belief, Fantagraphics violated this limitation by selling or authorizing for sale English language versions of Monsters Book 1 in Spain, Mexico, Portugal, Brazil, Germany, the Netherlands, the United Arab Emirates, France, Italy, Turkey, Korea, Japan, and China."

As a result, in January 2021, Ferris demanded an audit, and the answer document asserts that Ferris "hired the accounting firm KPMG to conduct the audit, intending that KPMG would provide a thorough and objective review of Fantagraphics' accounting practices. Fantagraphics refused to grant KPMG access to its books, instead insisting on an NDA that, among other things, would prevent KPMG from disclosing to Ms. Ferris any information discovered in the audit other than whether Fantagraphics underpaid Ms. Ferris."

The answer document also claims, "Her significant challenges trying to get an accounting from Fantagraphics have further slowed her progress. Ms. Ferris is informed and believes that Fantagraphics has persistently underpaid her royalties on Monsters Book 1, requiring Ms. Ferris to pick up odd jobs to support herself and her daughter" though also saying that she "has refused payments from Fantagraphics for Monsters Book 2, including pre-sale payments from Amazon.com, because Monsters Book 2 is not complete, and Ms. Ferris has not yet determined whether Fantagraphics will be its publisher."

Fantagraphics September 2021 Reply to Counterclaim

In September 2021, Fantagraphics made a reply to the counterclaim stating, "although Ferris now claims that Fantagraphics was a 'bully' and a 'liar' in its dealings with her, in a March 24, 2020 'Hi All' email to five named Fantagraphics employees, including Gary Groth, she unequivocally wrote: 'I send so much love to every single one of you.'"

The Fantagraphics reply to counterclaim document later continues, asserting that "Ferris now effectively admits that every time she promised Groth and Bemiss that she would promptly complete her 'polished' (her word) version of Book 2 and send it to Fantagraphics for its publication, she was knowingly lying and had no obligation and no intention of doing so".

This September 2021 reply document from Fantagraphics also claims, "Fantagraphics' only fault in the entire underlying saga was its heroic patience – for which Ferris repeatedly expressed her gratitude – in waiting (ultimately in vain) for her to keep her repeated promises to it."

Regarding the second part of the manuscript submitted to them in 2015, Fantagraphics says in its reply to counterclaim that "Ferris – for the first time – seeks to trash the second half of the massive MONSTERS manuscript she submitted to Fantagraphics in 2015 as unpublishable 'remnant pages left over from Monsters Book 1. But that is not how her agent, acting and speaking for Ferris, saw those pages.'"

The Fantagraphics reply to counterclaim filing also published emails from the production process between Ferris and Fantagraphics, citing Ferris' agent's concerns in 2017.  April 2017 emails from Bemiss to Groth state:

"I too thought book 2 was done. She has assured me she is working on it, mostly the first part that she had to change slightly to split it into 2 volumes. I have talked with her about it several times. I do recommend you calling her and if you don't get any satisfactory answers, let me know…

"What I'm not sure I understand is why she didn't work on Vol. 2 after Vol. 1 had gone to the printer, which was a year ago, i.e. she's had literally a year to finish Vol. 2 now, most of which was before the real distracting media blitz hit. But, in fact, I thought she was.

"Anyway, I'm just frustrated, and I'm sure there are reasons that I may not know."

"Hi Gary I had a a long talk with Emil this morning. She has added a bit to the 2nd book to account for the break, and it has tripped her up. At this point, she says she has 200 pages done, but the first 100 are still being smoothed out, and the last 100 need some attention."

In its reply to counterclaim document, Fantagraphics also claims that "once Fantagraphics' Book 1 was published, she constantly demanded that Fantagraphics provide her with detailed interim sales information and pay her royalties before they were due, none of which she was technically entitled to but which Fantagraphics complied with anyway. And when Ferris (or Bemiss at her direction) requested all manner of underlying financial information, to which Ferris was not entitled, Fantagraphics provided what they requested, and thereafter the presumed 'suspicions,' if there were any, that prompted the requests were apparently erased. She also undertook personally to hector the French publisher of MONSTERS, accusing it of cheating her."

On the matter of the audit, Fantagraphics claims in its reply to counterclaim that Ferris believed "she should be free to publicly disclose any and all documents and information provided by Fantagraphics, including Fantagraphics' most competitively sensitive documents, and including for the sole purpose of harming Fantagraphics." And that "Fantagraphics repeatedly confirmed that it was fully prepared to cooperate with the desired audit — precisely because it has nothing to hide and considered Ferris' 'suspicions' baseless, if not pathological.)"

In the September 2021 reply to counterclaim, Fantagraphics also details payment procedures, claiming that "Virtually from the outset of Ferris' contractual relationship with Fantagraphics, in January 2016, she became obsessed with money, frequently leading to questionable conduct. For example, under their Publishing Agreement Ferris was entitled to an immediate advance payment of $12,000. However, she demanded instead that Fantagraphics pay that sum to her in monthly installments of $750, apparently to avoid jeopardizing her legal entitlement to disability payments from the State of Illinois".

Fantagraphics Books, Inc. v. Ferris Sept. 2022 Order Denying Motion for Partial Summary

In September 2022, the court issued an Order Denying Motion for Partial Summary Judgment, which set out the following series of events.

"In 2012, Ferris, a formally trained artist and novelist, began working on what would become Monsters. The graphic novel tells the story of Karen, a 10-year-old girl who grew up in Chicago in the 1960s.  Ferris writes and illustrates everything the reader sees on the page, including the writing, art, color, and lettering, so her work on the manuscript was time-consuming. In 2015, Ferris finished a 600+ page manuscript for Monsters, and though she knew it would require additional editing, she engaged literary agent Holly Bemiss to shop the manuscript to potential publishers. Fantagraphics, an independent Seattle-based book publishing company, expressed interest in publishing Monsters.

"During negotiations, Gary Groth, the president of Fantagraphics, indicated that the 600+ page manuscript was too long to be commercially marketable. . Fantagraphics contends that the parties agreed that Fantagraphics would publish Monsters in two volumes because of its length. For her part, Ferris asserts that the parties discussed but never reached agreement on the terms for publishing the second installment of the story. Ferris agreed to edit the manuscript down to approximately 400 pages, which left approximately 230 pages that she refers to as the "remnant." Ferris contends that she "never intended to use the remnant as the principal source for the next installment of Monsters, which [she] started working on before the first book was published." As part of Ferris's process of editing down Monsters, she created a set of new pages that presented a different ending than the one in the manuscript. According to Ferris, the "new ending is not in any way in alignment with the remnant, so publishing the remnant as the next installment of the story won't make any sense and will be confusing to readers." Ferris contends that once Book 1 was created, the remnant "was no longer usable as the basis for the next work in the series," and she told Groth that only 30-50 pages of the remnant "could possibly be used" for the next book.

"The parties entered into a publishing agreement in January 2016. The agreement grants Fantagraphics exclusive rights to, among other things, "[p]rint, publish, and sell the Work in hard cover and soft cover book form," "[p]rovide electronic and digital versions of the book," and "[l]icense publication of the Work"-including "selections from the Work in anthologies and other publications, in mail-order and schoolbook editions; or as premiums and other special editions." The agreement does not define the term "Work." However, it defines "Book" as "a compilation of the Work in book form currently titled My Favorite Thing Is Monsters." It further contains a reservation of rights providing that "[a]ll rights (TV/ movie/ dramatic/ multimedia/ merchandising) not included in this contract belong to the Author."  The agreement's integration clause states that it "contains the entire understanding of the parties with respect to its subject matter," and that "[a]ny and all representations or agreements by any agent or representative of either party to the contrary shall be of no effect." Furthermore, any "waiver or modification of any of the terms of th[e] Agreement" is required to be "in writing, signed by both parties."

"Ferris agreed to deliver the 'Work to be included in the Book' to Fantagraphics 'according to a mutually agreed upon schedule,' and Fantagraphics agreed to 'publish the Work within 24 months of the date of th[e] Agreement.' Ferris also authorized and appointed Bemiss to act as her agent under the terms of the agreement. Bemiss sent Groth a draft announcement for his approval to publicize the agreement and upcoming publication. The draft announcement, which was subsequently printed in relevant part in the trade publication Publishers' Marketplace, stated that the book would be 'published in 2 volumes.'

"Monsters Book 1 was published in February 2017. Fantagraphics published it with the words "Book One" prominently written on the title page and spine. With the agreement in place, Fantagraphics began granting licenses to foreign publishers to publish both volumes. According to Fantagraphics, the licenses specified the separate publication of Book 1 and Book 2, and Fantagraphics received separate advance payments for each volume. Fantagraphics sent Ferris copies of the licenses and her contractual share of the advance payments, including those specifically attributable to Book 2, without objection from Ferris.

"According to Fantagraphics, the parties and Bemiss agreed that Book 2 would be published in July 2017. Ferris advised Fantagraphics that she wanted to "polish" the second part of Monsters before it was published, promising that she would deliver her polished version to Fantagraphics in time to meet the publication date.  Fantagraphics announced the July 2017 publication date in its catalogue, and asserts that it did so with the "full knowledge and enthusiastic support" of Bemiss and Ferris. Ferris created a front cover for Book 2 in collaboration with Fantagraphics' designer, and Fantagraphics alleges that she agreed that it could be included with the announcement for Book 2. Ferris and Groth agreed that Ferris would need to write pages for Book 2 that would represent a transition from Book 1 to Book 2, and Ferris sent the new transition pages to Groth in May 2017.

"Despite the parties' initial cooperation, difficulties ensued in bringing Book 2 to market. Ferris claims that Fantagraphics "pressured" her to meet several deadlines to finish the next installment, but she was unable to meet those deadlines because Fantagraphics was "insisting" that she travel to promote Book 1. Regardless of the reasons, Ferris did not meet her deadline, and the parties agreed to reschedule the publication of Book 2 to October 2017. Ferris failed to meet the deadline again, and the parties agreed that Book 2 would be published in April 2018. Each time, Fantagraphics announced the new publication dates in its catalogue with Ferris's and Bemiss's "full knowledge and support," featuring the Book 2 front cover and other content Ferris created for the announcement. Ferris again failed to meet the deadline for the April 2018 publication.

"While awaiting the publication of Book 2, the parties agreed to create and publish a "one shot" 32-page comic book to help promote both Books 1 and 2 of Monsters."

2019 Free Comic Book Monsters

The My Favorite Thing is Monsters comic for Free Comic Book Day 2019 would also win the 2020 Eisner Award for "Best Single Issue/One-Shot." The September 2022 Order Denying Motion for Partial Summary Judgment continues in part:

"By the time Ferris missed her deadline to meet the April 2018 publication, Fantagraphics had publicly announced a publication date for Book 2 in three separate catalogues and created marketing materials and prepared three separate times. At that point, and without a draft of Book 2, Fantagraphics told Ferris it could not risk further damaging its relationship with its distributor, retailers, and the publishing industry by announcing a publication date for Book 2 unless and until Ferris actually delivered it. To date, Ferris has not delivered Book 2 to Fantagraphics.

"In June 2021, Fantagraphics filed a lawsuit in this Court, seeking a declaratory judgment that it is entitled to publish Book 2 of Monsters. Ferris counterclaimed for breach of contract for failure to pay her according to the terms of the publishing agreement, breach of the covenant of good faith and fair dealing, and for a declaratory judgment that the publishing agreement covers only Book 1 and does not grant Fantagraphics the right to publish 'any of the remnants from the Book 1 manuscript.'"

Other legal arguments examined here include the jurisdiction of the case, some discussion on the admissibility of some emails, and the amount of money involved. To this last point, in the Order Denying Motion for Partial Summary Judgment, the court stated (emphasis still ours):

"The Court exercises its discretion to accept the parties' statements about the jurisdictional amount in their supplemental briefing because those statements are made by their counsel in a signed filing, and because their estimates appear reasonable given the other evidence in the record, including evidence that the first book 'generated for Ferris more than $450,000 in royalties and other income and concomitant profits to Fantagraphics.'"

 My Favorite Thing Is Monsters Settlements and Announcements

The case between the two parties reached a provisional settlement in September 2022.  The final settlement relied on Emil Ferris providing her complete manuscript of Book Two.  In March 2023, that happened, and the case was dismissed.

My Favorite Thing Is Monsters Book Two has been listed and scheduled thus:

My Favorite Thing Is Monsters Book Two (My Favorite Thing Is Monsters, 2) Paperback – April 9, 2024

The most anticipated graphic novel of 2024, concluding the story of young Karen Reyes, the most inspiring "monster" in contemporary fiction. Set against the tumultuous political backdrop of late '60s Chicago, My Favorite Thing Is Monsters Book Two is the eagerly awaited conclusion to the most acclaimed graphic novels of the past decade. Presented as the fictional graphic diary of 10-year-old Karen Reyes as she tries to solve the murder of her beloved and enigmatic upstairs neighbor, Anka Silverberg, a holocaust survivor, while the interconnected stories of those around her unfold. In Book Two, dark mysteries past and present continue to abound in the tumultuous and violent Chicago summer of 1968. Young Karen attends the Yippie-organized Festival of Life in Grant Park and finds herself swept up in a police stomping. Privately, she continues to investigate Anka's recent death and discovers one last cassette tape that sheds light upon Anka's heroic activities in Nazi Germany. She wrestles with her own sexual identity, the death of her mother, and the secrets she suspects her brother Deez of hiding. Ferris's exhilarating cast of characters experience revelations and epiphanies that both resolve and deepen the mysteries visited upon them eariler. Visually, the story is told in Ferris' inimitable style that breathtakingly and seamlessly combines panel-to-panel storytelling and cartoon montages, filled with B-movie horror and pulp monster mag iconography."

Additionally, in April 2023, Publisher's Marketplace also declared that a new graphic novel by Emil Ferris, Records Of The Damned, has been auctioned off to Pantheon and described it as "set in mid-60s Chicago, a prequel to My Favorite Thing Is Monsters, following its monster-loving protagonist's queer coming-of-age and burgeoning friendship with her haunted neighbor".

There has been no announced date yet for the publication of Records Of The Damned, while My Favorite Thing Is Monsters Book Two is scheduled for April 2024 release. And if, as expected, My Favorite Thing Is Monsters Book Two wins an Eisner or three, it should make for an entertaining acceptance speech.

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