No fancy introduction this week people.

Brian Hibbs happens to be the retailer that filed a class-action suit against Marvel Comics for breach of contract. I happen to be the “guerilla journalist” that brought him to Ambidextrous.

This happens to be the one-on-one.

Brandon Thomas: Describe your background, store, and clientele for anyone that hasn’t heard of Brian Hibbs.

Brian Hibbs: I own Comix Experience in San Francisco. I’ve been selling comics for a living, in one fashion or another for nearly 20 years. Comix Experience is a “pure” comic book shop – we don’t sell games and cards, just comics, trade paperbacks and graphic novels.

Thomas: You’ve recently gained notoriety for filing a class-action suit against Marvel Comics. Could you comment on your rationale and the grievances that led to this point?

Hibbs: Comic book retailers buy directly from Marvel Comics, using Diamond Distribution as the broker. Marvel unilaterally sets their own Terms of Sale (TOS, for short) to the comic retailers.

Comic retailers buy comics non-returnable from the publishers – if a book doesn’t sell, the retailer has to absorb that cost. Most retailers are under-capitalized Mom’n’Pop type affairs, and the quick turn of their projected sales is all-important to them. Late, or otherwise mis-solicited comics (changed creative team, etc.) costs sales in virtually all cases. There is any number of reasons for this: some customers lose interest over time, sometimes you have customers moving away (especially important for stores located near college campuses).

The entire industry recognizes this – there are late shipment policies in place for every single publisher distributed in the Direct Market. Most of these are enforced by Diamond Distribution, but in the case of the brokered publishers (Dark Horse, DC, Image, Marvel), their individual TOS are in effect.

Marvel’s TOS clearly states that if a book ships more than 30 days from its solicited on-sale date, or if it has a different creative team than solicited, then it will be made returnable. Marvel has shipped a LOT of material out-of-terms – they’re recently admitted to some one hundred and ten items, and I believe that there are a significant number more to be discovered.

They’ve been significantly and flagrantly in breach of their own TOS for some time now, and I thought that they should comply with the rules they set down.

Look: All we’re worth, in the end, is living up to our promises. That’s the very basis of society. Marvel didn’t live up to their side of their promise, and I feel that retailers should be properly recompensed for the damages that came from that.

Thomas: Was this suit a final strike against a group of people that never adequately responded to your concerns? Were any steps taken before things escalated to this point?

Hibbs: I think the very last thing that any rational human being wants to do is to go to court. I mean do YOU want to go to court? Didn’t think so.

This wasn’t a decision that was made lightly, nor indeed without a great deal of trepidation. No one wants to have to go to court.

OF COURSE there were “steps taken” – there’s been a great deal of communication, not just from me, but also from hundreds of retailers, to try and get the situation rectified in ANY other fashion. We contacted Diamond, we contacted Marvel, we begged and pleaded, and we heard nothing back in return. Not even a “no”, but NOTHING.

This was absolutely and in every way a “last ditch” effort to get Marvel to live up to their own commitments.

Thomas: This suit was announced the weekend after the Spider-Man movie opened to critical acclaim and record-breaking ticket sales, and some are of the perspective that this lawsuit placed an unexpected black eye on the industry. Was the announcement bad timing? Strategic timing? Any regrets regarding the week of the announcement?

Hibbs: Filing a lawsuit isn’t like, oh, I don’t know, going out and buying a suit. You can’t just go file a suit because a movie is successful over a weekend! These things take weeks to arrange! If the Spider-Man film had tanked at the box office, the suit still would have been filed when it was.

Clearly the announcement of the suit didn’t affect Spider-Man sales in any fashion, nor did it put any “tarnish” upon our industry. Can you point to a single person anywhere who didn’t buy a comic because of this suit? Who passed on seeing the film? This suit in no way gave comics a “black eye”

Thomas: I’m not accusing you of costing Spider-Man ticket sales of course, but to the curious onlooker the timing appeared suspicious. Whether or not the movie was a hit (as every indication said it was going to be), the fact of the matter is that with a big budget summer blockbuster in the wings, the name Marvel Comics was temporarily thrust into the pop culture spotlight. I think this increased the possibility that your suit would garner additional attention from media outlets that suddenly had Marvel on the brain. The suit announced three weeks earlier, three weeks later, and the context is slightly altered. You agree?

Hibbs: Marvel is a publicly traded, multi-million dollar company. I’m reasonably sure that the value of Marvel is greater than every comic book shop in the world, combined. Hell, the rights to Spider-Man alone is probably more than the combined worth of every comics shop in the world, just in pajamas and pillowcase rights.

I know they like to make a lot of spin of how poor widdle Marvel is fighting the big bad AOL, but look at things objectively: They are a major corporation – a corporation that billionaires squabble over, for god’s sake. The way you make multi-million dollar corporations pay attention to your grievances, after you’ve tried polite and reasonable discourse, is with publicity.

So, did the timing “increase the possibility” of media attention to the suit? Obviously. It’s important that the stockholders of Marvel Comics are aware of how the company treats the key retailers of their core product line. The company’s management had already apparently decided that retailers were not important enough to listen to – what other choice do we have but to at least attempt to bring the issue to the attention of the people who put and keep that management in place?

Further, while it “increased the possibility”, it was certainly, in no way, a sure thing that the media would be paying any attention to Spider-Man. I’m sure you can just as easily as I name 20 or more comics-related films that the media paid no attention to whatsoever.

And, I repeat, the suit was being planned for weeks and weeks before the movie, and would have been filed regardless of the success or failure of it.

Thomas: And just how long has Marvel been violating their Terms of Sale?

Hibbs: Far longer than any of us had realized. Marvel just released a list of stuff that they’re finally making returnable and it goes back five years. (Let me also note that I believe that list only covers a fraction of the books they are out of terms on). I had initially thought the problems really only dated back through the Jemas/Quesada regime, but Marvel, itself, has just shown us the problem was far more pernicious than anyone thought.

Thomas: How does Marvel even go about violating their own contract? Has some retailer mailed a stack of stripped covers back to Marvel expecting a credit and been ignored?

Hibbs: No, Brandon, you can’t send back unsold product until it is authorized to do so via Diamond Comics Distribution. When you do so, it just gets sent back to you – at your own cost! That would mean we would’ve paid shipping three times: once for the books to arrive, once to send the covers back, and then a third time as Diamond just ships them back to us. That’s hardly a sensible course, and it just would waste everyone’s time.

Further, stripping covers and sending them blindly in isn’t exactly a wise course of action – Marvel has the right to insist on full-copy returns if they like. Sending back covers could mean that we’d lose any chance to return the products that should be returnable.

On the retailer side, I and dozens of other retailers called and asked for the authorization to return the material. We were refused. Well, even that’s too kind… we were ignored.

“How” did they violate their TOS? Let me quote to you from it:

      X. Order Reductions/Returns Policy

 

      Orders for Marvel products cannot be canceled or reduced except in the following circumstances:

      1. Delivered more than thirty (30) days after the solicited on-sale date specified at the time of purchase;
      2. Product contains significant editorial or manufacturing differences from the solicited content;
      3. Product containing distinct seasonal or holiday content is delivered more than one (1) week after the close of the season or holiday.

Items, which meet the above criteria, will be designated by Marvel as qualifying for order reductions or returns through a DCD customer publication

….

Merchandise accepted as returnable by Marvel must be in salable condition, with no obvious internal or external defects, damages, or alterations. Specific shipping information will be communicated through a DCD customer publication. All returns must include all appropriate documentation specified by DCD. All freight expenses associated with merchandise returns are the customer’s responsibility.

*******

Those are their terms. How did they NOT break them?

The statements here are clear and unambiguous: if a book is more than 30 days late, it “will” be made returnable (or reducible, but, then, they didn’t do that, either) but in order for us to return them, it “must” be accompanied by the appropriate paperwork (which they didn’t provide).

Thomas: Just how much money is Marvel costing you and other retailers by refusing to honor their publishing contract? Are books like the Ultimates and New X-Men losing a significant amount of sales due to tardiness?

Hibbs: I’ve got a big box full of comics that if I could I would return to Marvel – and that doesn’t begin to count all the stuff I’ve since liquidated because I’ve had no chance of selling. I’ve probably got a couple thousand dollars of stuff I could return to Marvel if they honored their TOS. Will my store close because of this unsold merchandise? No, of course not – but it is the equivalent of a few months worth of employee paychecks. That’s really a significant amount of money to a single store operation.

Multiply my loss against all 3500-ish stores in the country. You’re talking about a multi-million dollar loss either way you cut it.

Thomas: Speculate a bit. Are your concerns shared by a great number of retailers?

Hibbs: I don’t have to speculate: Yes, they are.

I’m in contact with scores of retailers and to the man they approve of what I’m doing.

If any retailer anywhere thinks this is the wrong course I invite them to contact me at [email protected]

Thomas: Business practices aside, any other problems with the Jemas/Quesada regime? I’ve heard your name before this lawsuit, and if memory serves (which it very well may not) you objected to a keynote speech or some series of comments made by Marvel? Was this the ‘self-loathing’ address?

Hibbs: I think the current leadership at Marvel is doing any number of things right. Creatively, Marvel is at a wonderful peak, and I think the public face that Joe provides is something really missing from this industry.

But, yes, I did object to the “Self loathing” address.

I wake up every morning singing praises that I’m alive and I’m doing what I do for a living. I’m proud and I am happy to be a comics retailer, and I think the overwhelming number of retailers the address was delivered to feel exactly the same way. You don’t want the EIC of Marvel Comics delivering an address that says, in effect, “I know you feel like a troll, but buck up, comics rock!” No shit that comics rock. I sure wouldn’t have been doing this for more than half of my life if I didn’t think that was so.

There was perhaps an audience that could have taken a lot from Joe’s speech that morning – but it sure wasn’t the people in the room at the time.

Thomas: Any possibility that Quesada’s “troll” comments were only aimed at a small minority of retailers?

Hibbs: If you ask my opinion, Joe’s comments were directed more at his own feelings about being in this business than anything else.

But, sure, let’s go with your theory.

He was speaking as the keynote address at a retailer function in conjunction with the San Diego Comic-Con. It was Bloody Early in the morning – most retailers I know are night people. The only retailers in that room were the smartest, most passionate retailers in the country, the ones who really care about this business and our place in it.

He, at least, picked the wrong venue for the comments.

I also note that I wasn’t the only retailer moved enough to comment on Joe’s speech: Robert Scott of Comickaze in San Diego independently wrote an open letter to the community. Honest to god, a speech about self-loathing is not the way to open the retailer’s portion of the San Diego Comic-Con. The people who may have needed to hear those words certainly weren’t anywhere near that room, and the ones who were in that room sure didn’t need (or want) to hear that specific speech.

Even if someone, somewhere did.

Thomas: What’s the end result of all this? Is the industry going to be better off if you win this thing? How is this good for comics?

Hibbs: The only thing I am trying to do is get a company to live up to the contractual relationship that THEY set. I would think that the value of that is self-evident – how can it NOT be good for “comics” to make sure that one has to honor one’s own contract?

Thomas: Are there other publishers out there that have rubbed you the wrong way for whatever reason?

Hibbs: That smacks of “have you stopped beating your wife”, Brandon.

This has nothing whatsoever to do with “rubbing me the wrong way” – they broke their own TOS repeatedly. They would not respond to requests to address it.

What would you have me do?

When other publishers ship late books according to their TOS, they take returns on them, or make the order adjustable, or do just about anything to mitigate the responsibility of the retailer buying non-returnable material for their own mistakes.

On those few and rare occasions when publishers or Diamond mess up the returnable listings, it’s usually one simple call to make everything right. The industry as a whole lives up to its commitments.

And repeated calls to Marvel and Diamond from hundreds of retailers received no response. If Marvel would communicate with us, I’m utterly positive both sides could come to a compromise we could both live with.

No rational person ever wants to go to court if they can avoid it.

Thomas: When all is said and done, when the name Brian Hibbs comes up people just want to know…is this a retailer with a legitimate business-related grievance…or is this a man with a grudge? Has this whole situation become personal?

Hibbs: I quite imagine that at the end of the day, when the name “Brian Hibbs” comes up, people say “Uh… who?”

I’m not even sure how to answer this, Brandon – no, of course it’s not personal, but how does just saying that make you believe it?

All I can fall back on is the fact that, as a comics retailer, I have a vested interest in a healthy and strong Marvel comics – I sell their comics for a living, after all! If I’m critical of them, it is because I want them to stop making what I perceive to be mistakes, so that they can be that much healthier and stronger. That is in my best interest, and in the best interest of the marketplace as a whole.

I’ve attached the terms along to this reply – look at them yourself. Marvel has released a list of 110 items that they’ve tacitly admitted they broke their terms on. I believe that’s only a partial list. Given the terms, and Marvel’s own admissions, I’m really not sure how you can think it’s anything but a legitimate business-related grievance?

Thomas: Thanks for your time Mr. Hibbs. It’s been a pleasure.

Hibbs:: You’re welcome, mate.

Okay, I want comments people. E-mails. Message board postings. Anything. Respond. Vent. Be heard. Do we need a Hibbs Interview part 2? Don’t go all mute on me now.

In seven…

Peace

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