Many are surprised to learn that the timing of when the
agreement is signed also impacts copyright ownership. If the agreement isn't formalized before the writing process begins, complications regarding copyright ownership may arise. In such cases, a writer
could claim they retain ownership of their contributions, potentially leading to legal conflicts. By establishing clear terms and conditions upfront, both parties can circumvent such issues and lay the groundwork for a seamless collaboration.
Joint Authorship and Copyright Ownership
If you look at The New York Times nonfiction bestseller list, you will discover that most books were written by someone other than the person whose name appears on the cover. If you wish to hire a writer, it's crucial to explicitly state in writing that their contribution will be considered a work for hire. Under a work-for-hire arrangement, the hiring party is recognized as the sole author and owner of the work. This ensures clarity regarding copyright ownership and protects the hiring party's interests in the project.
The Copyright Act lists two types of work for hire:
(1) work created by an employee within the scope of their employment; and
(2) works specifically commissioned and governed by an explicit agreement stating the work is considered a work for hire.
Without a written agreement, the legal implication is that the work is jointly owned. If deemed a joint work, each author has the non-exclusive right to license the work, subject to a duty to account to the other. The joint author presumption can be avoided—or overridden—through a contract. Without a clear agreement, however, decision-making conflicts may arise, hindering the sale or licensing of exclusive rights.
The intent (or lack of intent) to create a unified work is crucial in determining whether a joint authorship exists. For this reason, how the work is registered with the U.S. Copyright Office holds significant importance. The information provided in the copyright application—such as listing a single author or selecting the “work for hire” option—carries a presumption of truth when determining the creators' intent.
What Distinguishes an Editor from a Co-Author?
In the context of a freelance editor's work, the "intent to create a unitary whole" is crucial in understanding why an editor is not considered a joint author. Joint authorship requires that all contributors intend for their individual creative efforts to be combined into a single, cohesive work. This means that each person’s contribution is meant to be part of an integrated final product, with the understanding that they are co-creators of the entire work.
A freelance editor's role is typically focused on refining and improving the author's original content rather than contributing new, original material that would be merged into the work as a whole. Because of this, even though an editor might make significant suggestions or changes, these contributions are seen as supportive rather than creative in a way that would qualify for joint authorship under U.S. copyright law.
However, to avoid potential misunderstandings and clarify the nature of the relationship, it's considered best practice to have a written agreement with a freelance editor stating that their work is "work for hire." This ensures that the author retains full ownership of the work and eliminates any ambiguity regarding joint authorship.
Essential Clauses Every Writer-For-Hire Agreement Should Have
To ensure you own the copyright, you must have a written agreement that includes the phrase "the work shall be considered a work made for hire.” Because the work-for-hire doctrine applies to a narrow group of works, and not all courts recognize work-for-hire agreements signed after a work is created, to ensure legal validity, it's recommended to include a backup copyright assignment in all writer-for-hire agreements.
It's also important to lay out what the writer is allowed to disclose and the scope of the assignment. Will the book be confessional, or is it the writer's job to put the best face on the subject without resorting to blatant deception? How many words? The average word count for a general-interest nonfiction book is between 50,000 and 60,000 words.
Compensation is typically structured as progress payments linked to satisfactory and timely delivery. The inclusion of royalties alongside the fee is subject to negotiation. Generally, a portion of the fee is paid upon signing, necessitating the establishment of milestones to trigger further payments.
If the book is sold to a traditional publisher based on a proposal, additional payments to the writer (and subject) will be tied to the publisher's payout of the advance. Typically, advance payments are paid in anywhere from two to four installments, i.e., (i) when you sign the contract, (ii) upon delivery and acceptance of the manuscript by the publishing house, (iii) when the book is published, and (iv) sometimes, a fourth and final payout when the paperback edition of the hardcover is published.
A ghostwriter agreement should cover the financial implications if one party withdraws from the project prematurely. If the subject decides to back out (provided both writer and subject are parties to the publishing agreement), specifying in the agreement that the writer isn't obligated to repay their portion of the advance can help alleviate the impact of a failed collaboration.
From a ghostwriter's perspective, it's important to have the subject promise to provide access to pertinent documents (e.g., diaries, memorabilia, or business papers) and use their best efforts to provide access to the subject's inner circle.
Ask the publisher to add both you and your writer as additional insureds on their media perils policy. While most major publishers carry media perils insurance, many smaller publishers do not. Remember that the additional insured's coverage is subject to the policy's deductibles and limits.
Confidentiality clauses protect information exchanged between two individuals. Whether the information gained working on a book concerns family or business matters, a well-drafted confidentiality clause can deter the writer from using that information against the subject for their personal gain.
Below is a sample confidentiality clause from an unsigned collaboration agreement between Fay Vincent Jr. (the former commissioner of baseball) and writer David Kaplan for Vincent's never-published memoir. According to Kaplan, "Vincent sat for interviews, told stories, and made a few editing changes" to the manuscript. At some point, the former baseball commissioner got cold feet and terminated his $300,000 publishing contract with Little Brown & Company - of which Kaplan was to receive a 40% share. Kaplan then sued Vincent for control of the manuscript. It did not end well for the writer. The unsigned collaboration agreement was deemed unenforceable, and the court refused to decide the joint authorship issue on a motion for summary judgment.
"All material whether oral or written contributed by either party for use in the manuscript, including materials and information provided prior to the execution hereof, shall be considered confidential, and neither party shall use any of such material or the facts or the information contained therein that have been provided with the parties' collaboration except as permitted hereunder or under an agreement with a third party to which both parties have previously agreed in writing, without the express prior written approval of the other party. In no event shall any confidential material otherwise be used by the party that has not furnished the same in the event there is any termination of the agreement. Specifically, Kaplan agrees not to participate in interviews, write any articles or books, or take any actions in or by which he discloses in any manner any of the unpublished information furnished to him hereunder, or any portion thereof, in connection with the work which is not publicly available or independently discovered by Kaplan, including any non-public aspect of the relationship of the parties involved in the preparation or the writing of the Work and/or its adaptation for use in any media whatsoever ...."A well-drafted agreement might include a non-disparagement clause. This is particularly important if you are a public figure or represent a public figure.
"You agree that you will not (nor will you cause or cooperate with others to) publicly criticize, ridicule, disparage or defame Subject, his family, his business associates, company, directors, officers, shareholders, employees, agents, or attorneys, with or through any written or oral statement or image, whether or not they are made anonymously or through the use of a pseudonym."
Defamation Risks: What You Should Know to Stay Protected
Since verifiable truth is a complete defense to a defamation claim, you should retain copies of all recorded interviews, transcripts, books, notes, letters, and other research materials used to prepare the book. See §9.12.1, The Copyright Permission and Libel Handbook by Lloyd J. Jassin & Stephen C. Schechter (John Wiley & Sons).
It's important to note that under U.S. libel law, the dead cannot sue for libel. Also, while truthful information is generally considered a full defense to libel, private individuals can still sue for publishing highly offensive or embarrassing truths. So, if your book goes too far and reveals intimate areas of a person’s life - e.g., sexual behavior, family life, medical procedures, mental (in)capacity – you may be inviting a right of privacy claim. Are there defenses? Consult an attorney. The First Amendment may shield the disclosure of private facts if there is a legitimate public interest served by the disclosure.
The right of publicity involves the unauthorized use of a person’s name, image, or likeness to sell or advertise products, merchandise, goods, or services. It is related to the right to privacy. Fortunately for memoirists, due to free speech considerations, courts historically construe publicity rights narrowly.
If you feel uncomfortable with the legal minefield of libel, right of privacy, and right of publicity law, consult a publishing attorney. A publishing attorney can evaluate or vet your manuscript and suggest ways to reduce the risks of writing about real people and actual events.
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DISCLAIMER: THIS ARTICLE DISCUSSES GENERAL LEGAL ISSUES OF INTEREST AND IS NOT DESIGNED TO GIVE ANY SPECIFIC LEGAL ADVICE CONCERNING ANY SPECIFIC CIRCUMSTANCES. PROFESSIONAL LEGAL ADVICE MUST BE OBTAINED BEFORE ACTING UPON ANY OF THE ADVICE CONTAINED IN THIS ARTICLE.
ABOUT LLOYD J. JASSIN
Mr. Jassin possesses a unique set of professional credentials. In addition to being a nationally recognized book publishing attorney, he was a publishing executive, serving as director of publicity for a division of Simon & Schuster. He helps authors, agents, and publishers avoid contractual traps and negotiate win-win deals. He will let you know if a contract is viable and what it will take to make it signable. He's available to answer questions about book contracts, film options, copyright, merchandise licensing, publicity, and privacy rights, and provide libel reviews of unpublished manuscripts. Whether choosing a title for a new book series or the name of a book publisher, podcast, or blog, he can help you avoid trademark infringement by doing a trademark clearance search and registering your mark. After law school, he worked for Viacom Enterprises, the world's largest distributor of feature films and off-network television programming. Before founding his firm, he was a trademark associate at Cowan, Liebowitz & Latman, an internationally respected intellectual property boutique. He's the co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons). He's been quoted in Publishers Weekly, The New York Times, Forbes, Fortune, and other publications, and he has taken the stage at BookExpo and spoken at Book Industry Study Group events. He's a former adjunct professor at the NYU Center for Publishing. Mr. Jassin graduated from Benjamin N. Cardozo School of Law and is admitted to practice in New York and New Jersey. Location: 1501 Broadway, 12th FL, New York, NY 10036, 212.354.4444. Email: jassin@copylaw.com.
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