Tapas: Right of Refusal Controversy
By Hervé St-Louis
May 18, 2017 - 18:48
On April 17, 2017, Tapas Media, the company that operates Tapas (formerly known as Tapastic) added a new section to their terms of services for creators posting their webcomics to the platform. The new addition gave Tapas the right of Refusal should a creator attempt to seek some form of a deal for their comics with a third party. This article is not a legal advice. Please seek a lawyer if you are affected with Tapas Media’s Right of Refusal clause.
Right of First Refusal
1. 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.
2. Written notifications can be sent to email@example.com with subject 'Offered Right.'
The reaction from Tapas-based cartoonists has been critical. On Twitter and in some Facebook fora, there have been calls for cartoonists to pull their work from Tapas immediately as a protective measure. Creative manager George Rohac has looked at the various loopholes set up by Tapas Media to change their terms of services even if a cartoonist notify them that he wants to leave their platform. Iron Spike publisher C. Spike Trotman encourages cartoonists to not sign up with Tapas Media and negotiate better deals that are more beneficial than offering people a place to post their work in exchange of the right to refuse.
The right to refuse puts the onus on the creator to allow Tapas Media to refuse any deal before they can approach any third-party. A right to Offer allows a company like Tapas Media to negotiate if they want to. But a Right to Refuse locks a cartoonist with Tapas Media before they can shop their work around.
There is no way to know how Tapas Media could even enforce its new Right to Refusal with Canadian and European cartoonists who have the benefit of the moral copyrights which cannot be transferred, or sold. In Europe and Canada, no one can force a cartoonist to act a certain way about their own intellectual property, regardless of a sale of rights or not. The United States does not recognize moral rights but neither can it deny Canadian and European cartoonist the use of their moral rights.
Tapas Media a much work to do before it can hope to build a library of intellectual property on the cheap.
Update: As I was publishing the article for the first time, I read a brief announcement by Tapas Media's Yoon Kim writing that the Right to Refuse clause would be phased out. A bit too late... Many cartoonists have already removed their comics from Tapas.
Last Updated: May 19, 2020 - 12:25
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