Posted in: Comics, Fantagraphics | Tagged: brian kane, fantagraphics, gary groth, hal foster, prince valiant

The Battle Of Prince Valiant Between Brian Kane And Gary Groth

Brian Kane wants to publish a collection of Hal Foster's sketchbooks for Prince Valiant. But he also wants his 8% from Gary Groth...

Brian Kane is, amongst other things, a book designer and restoration specialist. A few days ago he posted to Facebook the following, regarding a planned Hal Foster's Prince Valiant Sketchbooks: An Illustrated Memoir series collecting Hal Foster's sketchbooks for the series. Prince Valiant was a newspaper strip begun by Hal Foster in 1937 that has told a continuous story across over 4000 strips, with Foster writing and drawing them, over 1700 Sunday strips until, 1971. From 1971 on, Murphy drew the strip from Foster scripts and pencil sketches until strip #2241 in 1980, when Murphy drew the solo with scripts by his son Cullen Murphy. Brian Kane posted the following;

"I was screwed over by Gary Groth and Fantagraphics, which has kept the 6-volume "Hal Foster's Prince Valiant Sketchbooks: An Illustrated
Memoir" series from being printed. In 2012, I proposed the series to Groth who told me he was interested in publishing it. I told him I would do it for the same royalty as I did "The Definitive Prince Valiant Companion," which was 8% (normally it is 10%, but King Features took 2% of my share)."

Gary Groth is the founder of Fantagraphics, and is one of the longest-standing comic book publishers in the world. He has specialised in publishing creator-owned auteur comics such as Love And Rockets, Hate, Acme Novelty Library and Eightball, as well as archival collections of classic comic and comic strip work, such as The Complete Carl Barks Disney Library, The Don Rosa Library, The Complete Peanuts and Prince Valiant. Brian Kane continued

For the next five years I located 359 of Foster's penciled roughs (76% of what he gave Murphy), 43 additional character sketches, 580 PV text pages, 124 personal letters and notes, and nearly 300 photos and pieces of miscellaneous art—nearly 1,400 artifacts in all. Then I designed all six 144-page volumes (that's 864 pages), and heavily annotated them. The series represents a deep dive into Foster's creative process and life during the last nine years he worked on the
strip—his achievements, failing health, loneliness, heartaches, and frustrations with the industry.

When I was about 90% done, I told Groth and he took the project idea to King Features in order to secure a license agreement. Then in 2018, Groth turned around and offered me a 2% royalty. Only 2%! He told me I didn't deserve more because I was "just an editor." For the record, I have a Masters Degree in History of Art and a Doctorate in Art Education, plus I am the world's leading authority on the life of Hal Foster. I also wrote the Comics chapter in the "History of Illustration" textbook.

Groth never told King it was my project, only that Fantagraphics was developing it all "in house." That means I was completely excluded
from consideration in his exclusive contract with King. Then Groth threatened to sue me if I didn't turn over all my files to him, but since I NEVER HAD A CONTRACT with Groth/Fantagraphics I said "No!" and stopped working on the series. I WALKED AWAY FROM MY OWN PROJECT. For months afterwards Groth continued to threaten and bully me, and made my life hell. King never returned my emails.

I received no advance money from Fantagraphics and I had to cover all my expenses. Just think what you would do if your boss said, "You've been working for five years without pay, anticipating a check 6-12 months after each book was published (basically trickling in over 10 years), but now I'm going to take 75% of what I promised you—and I still expect you to finish your work." What would you do? I cannot take the project to another publisher because the exclusive
contract between Fantagraphics and King keeps me from doing so. Also, I cannot break their contract because if I did then Fantagraphics can
sue me and King for tortious interference.

Understand that I do NOT want to break the Fantagraphics/King Features contract—I want them to renegotiate it so I get my 8%. King erroneously believes they own the sketches, but they do not. In the 43 years Foster worked on Prince Valiant, King never laid claim to ANY of Foster's sketches (and I have photos going back to the 1940s proving he made them). In the entire 6-volume series I use a couple finished panels and three full pages for historical reference, but the
total percentage of King-owned published PV strip art only comes to 0.36% of the total series, which is well below what is considered Fair Use. King did nothing to help with this project and does not deserve more than 2% to cover a copyright license use.

I have exhausted all pro bono legal possibilities (CBLDF included), which is where YOU come in with an email campaign. If every one of you could just send 1 email a day *** just 1 *** EVERY DAY until I get my 8%, then these books can be printed, AND it would send a message about fairness, respect, and doing what is right by creators (pretty ironic considering we're talking about people being greedy about the "might for right" Prince Valiant).

We are not going to run those email addresses here, but you can find them on the Facebook posts if you are so minded. In response, Gary Groth has sent out the following letter to those who have emailed him, saying;

I have received your letter regarding Brian Kane and Fantagraphics, which was obviously inspired by Brian's recent Facebook post. I respect that you felt compelled to write it, but I am taking the liberty of providing to you here my and Fantagraphics' side of the story. I believe his post was unfortunately replete with distortions and misinformation.

— In 2015 Brian proposed that we publish a series of books to be edited by him that would consist primarily of Hal Foster's preliminary renditions of his classic "Prince Valiant" oeuvre. He said he obtained those renditions from Foster's estate. He proffered his lay legal opinion that Foster's estate owns all rights to those renditions. We were interested and spent the next five years discussing with him that proposed series, although there was no discussion of contract terms for the first three or so years. On that subject, both sides were obviously proceeding on their separate assumptions of what those terms would consist of.

— In due course, the issue of the legal ownership of the renditions had to be addressed. We knew we couldn't rely on Brian's lay legal opinion, especially because he never claimed any awareness of the extent of Foster's agreements with others relating to his PV work. Ultimately, the major publisher of that work flatly disputed Brian's lay legal opinion, and when we so advised Brian of this response, he responded that it had been "worth a shot."

— Because we wanted and hoped to publish the series, we secured a license from the owner of that material to publish those renditions in the series, for a payment by us of a significant royalty (with a significant advance) for that license.

— In 2010 we published an earlier "Prince Valiant" book that was edited and largely written by Brian. As disclosed by him, his royalty was 8%, essentially the industry standard. That book did not require the licensing of any other content, so our entire "cost" for the editorial content of the book was that 8% percent royalty.

— Because we had to license the content that would be the major component of Brian's proposed series, if we acceded to Brian's demand for an 8% royalty for the series our "cost" for its editorial content would essentially be double what it was for Brian's earlier book. As we repeatedly explained to Brian, that doubled editorial cost would render the publication of the series economically untenable. But Brian either doesn't understand or chooses to ignore that hard and unavoidable reality.

— We ultimately offered Brian a 4% royalty, which would still render our publication of the series financially precarious. But he rejected that offer and has now mounted a public tantrum seeking to apply pressure on us to accede to his untenable demand for 8%. We decline to cave to that calculated pressure or to Brian's jeremiad for his fantasy royalty. Although Brian claims that we are "holding up" the publication of the series, the reality is that we continue to want to publish it and that the only thing holding it up is Brian's demand for that unrealistic royalty. I appreciate that you are supporting someone you admire, and I hope you will also consider the information and context I've provided above.

In response, Brian Kane has parried, providing his own ripostes on Facebook, saying;

To clarify some of Groth's disinformation: I did not proffer a lay legal opinion about the ownership of the sketches. I consulted a lawyer, and it was his opinion that a company cannot claim ownership of any art that it did not publish, especially in this case where they made no claim of ownership in the 43 years Foster had been drawing these sketches. Think of all the sketches artists make at conventions and the sketchbooks they sell. Marvel, DC, etc. make no claim of owning those sketches.

I challenge King to prove that they own any of Foster's sketches.

Groth claimed that Fantagraphics paid a "significant royalty (with a significant advance) for that license." 1) It appears Groth charged me for all the license fees. In other books I have worked on, the license fees came out of the initial receipts as a production cost. In Germany, they are paid by the publisher; and 2) Groth signed an exclusive contract with King without informing me of the particulars (that he would only offer me 2%). I believe he did so because he knew I would take the book elsewhere. He was right about that.

When he told me that he would only pay me a 2% royalty, I told him I would have to "shop it around." That's when he told me about the exclusive contract and when he began threatening to sue me.

Afterwards, I talked with another publisher who told me the 8% would not be a problem, but they could not publish the series because the Fanta/King contract blocked them from doing so.

Royalties are usually paid out twice a year (every six months). There's an initial surge, but then it trickles in over time. With 6 books it could be 10 years before I see all of the money paid. This is not a "get rich" project, and it is highly unlikely there would be a second printing. Plus, who is to say Fantagraphics will be around in 10 years?

Finally, I am happy to hear that Fantagraphics is still interested in publishing the books. Now if Fantagraphics and King can each chip in 2%, which would bring my percentage up to 8%…we can get this done!

It looks like we may be at an impasse…

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