By Lloyd Jassin
You've heard the oft-repeated statistic that 50% of all marriages end in divorce. But what about creative partnerships? The odds are no better. They fail due to a lack of commitment, communication, and unrealistic expectations. And the inability to deliver a completed manuscript that is satisfactory in content and form in the amount of time allotted. Contracts define the parties' goals, rights, and remedies and recognize what could go wrong. If the relationship falters, a well-drafted collaboration agreement (written during the romance stage of the relationship) can be consulted.
The Law Presumes 50/50 Ownership
The cornerstone of any collaboration is copyright. A joint work is defined as a work prepared by one or more authors with the intention that their individual contributions be merged into a single work.
Copyright agreements pose their own unique issues. In the absence of a written agreement, the Copyright Act has a small set of default rules. Unless you contract around these rules, each collaborator is presumed to co-own the copyright. As joint authors, they share equally in the money the work generates. Judges do not apportion a larger or smaller share based on a collaborator's contribution, experience, reputation, or seniority. Under these invisible gap fillers, each owner can license nonexclusive rights to the work without the other's consent -- subject to a duty to account for profits. As such, co-owners cannot sue each other for copyright infringement.
It's easy to see how a court might misapply the default rules if the work in question is a memoir or an extension (or expression) of one author's business or brand.
Works for Hire
If you wish to obtain total ownership of the final work, copyright law allows you to obtain rights on a work-for-hire basis. A work for hire can either be a work specially commissioned or one created by an employee in the course of their employment. If you are the hiring party, it is essential to clarify the nature of the writing services before you hire that person. Later may be too late if your objective is to own all rights. After-the-fact attempts to classify a work as "for hire" often fail, which is why a well-drafted agreement includes a backup copyright assignment.
Four conditions must be satisfied to qualify as a work for hire. First, the work cannot already exists. It must be specially ordered or commissioned. Second, the agreement must contain the magic words "work for hire." Third, the work must fall within one of nine narrow categories of works listed in the Copyrights Act (also found at the end of this post). This third requirement disqualifies novels. Four, the agreement must be signed by the independent contractor or freelancer. If indeed work for hire, all of the attributes of copyright ownership vest in the hiring party.
Key Contract Clauses
Below are key clauses found in collaboration and ghostwriter agreements.
Delivery. As a rule, nonfiction books are sold to publishers based on a written proposal. Think of the book proposal as a business plan for a book. Typically, if you hire a writer to prepare a book proposal for you, you will be charged on a flat-fee basis. The collaboration agreement should outline what the proposal should contain, e.g., a description of the intended market for the book, the author's (and writer's) credentials, a table of contents, information on how the book can be marketed, and one or two sample chapters.
The proposal is usually written with the understanding that substantive work on the actual manuscript will not begin until there is an offer from a publisher. What happens if the proposal writer is fired, and the hiring party uses someone else to complete the manuscript? Is the original writer entitled to share in any proceeds from the exploitation of the work? A well-drafted collaboration agreement will address these issues.
Approvals. How will business and editorial decisions be handled? Jointly? If one party retains approval rights over the manuscript, that means they can reject the other writer's contribution. One way to avoid disputes is to include a satisfactory manuscript clause. The following clause is taken from an agreement to write a well-known celebrity's memoir:
Provided Subject has made herself available to Writer as outlined in Paragraph X, Writer shall deliver a complete Proposal, satisfactory to Subject in content and form, on or before __________. The Subject shall have the right to approve the Proposal. The subject shall further have the right to promptly review and comment on draft sections of the manuscript from time to time to ensure that the Work substantially conforms to the approved Proposal and for purposes of ensuring the accuracy of those facts contained therein. The subject shall have the right to approve the final text of the Work before the delivery date specified in the Publishing Agreement.From the writer's perspective, it would be advantageous to include a clause requiring that the subject provide detailed written reasons for any dissatisfaction within x days of delivery. After receiving written comments, the writer should be allowed to revise and resubmit.
Compensation. Ghostwriters and other writers-for-hire usually get paid in installments – after portions of the manuscript are received and approved. However, a writer-for-hire who has been commissioned does not have to forgo royalties in exchange for a one-time fee. One way for a writer-for-hire to protect themselves is to take a smaller up-front fee in exchange for a percentage of royalties. While conventional wisdom says that most books don’t earn back their advance, by having a stake in the book's success – even a small one – an insurance policy is in place if the book becomes a surprise bestseller.
It is customary for commercial publishers to advance a sum of future royalties to the authors when signing a publishing agreement. It's been likened to a payday loan. With a joint authorship situation, if one of the authors has greater immediate financial needs, they might ask their writing partner to defer all or part of their compensation from the initial advance. Once that money has been recouped or refunded from future proceeds, the author who deferred can start getting paid, perhaps on more favorable terms than if they had not deferred payment. Deferring payment is also a way for someone to obtain the services of a more experienced writer without having to pay out of pocket.
Delivery dates in publishing are tied to publisher advances. A missed deadline can result in the cancellation of a book contract. That, in turn, can trigger an author's obligation to repay their advance. Any agreement between collaborators should deal with returning the portion of the advance paid to each collaborator.
If the subject gets cold feet and pulls out (assuming both writer and subject are parties to a third party publishing agreement), stipulating in the collaboration agreement that the writer does not have to repay their portion of the advance will take some of the sting out of a failed collaboration. In other creative divorces, it may be possible to separate out each author's contribution and transfer those rights to the original contributor. These strategies overlap and are not at the exclusion of each other.
Keep in mind even those who do not qualify as joint authors for copyright purposes (for example, individuals who made an important – but not copyrightable -- contribution to the manuscript) may still share in the profits and control of a work through an appropriate contractual arrangement.
Credit. By some estimates, up to seventy percent of nonfiction books are ghostwritten. It is widely believed that Theodore Sorenson wrote John F. Kennedy's Pulitzer Prize-winning book, "Profiles in Courage,” for which JFK took both the prize and sole author credit.
Writing credits take various forms. Before taking on a writing assignment or hiring a writer, someone needs to initiate a discussion about credits. The most common writing credits are "by Subject and Writer" or "By Subject with Writer" or "Subject as told to Writer." By definition, if the book is ghostwritten, sole authorship credit for the work will be in the subject’s name. In that case, the writer for hire must make peace with the fact the subject will receive sole authorship credit. Some ghostwriters argue that the absence of credit should translate into a higher fee.
In any event, in the case of shared credit, the size and prominence of the names and order of names on the cover and title page need to be negotiated and agreed to in writing. If there is greater name recognition in one person's name, it makes sense for that person's name to appear first. Where the issue is not clear-cut, alphabetical order is a sound approach.
Representations & Warranties. Representations and warranties are promises that the work will not infringe copyrights, contain defamatory statements, violate anyone's right of privacy, or otherwise cause harm. An indemnity is a fellow traveler. It's a promise to reimburse publishers, booksellers, and licensees if they are sued or threatened with a lawsuit.
If any liability arises because of a breach of either parties’ representations or warranties, the non-breaching party should be reimbursed for costs and expenses (including reasonable attorney's fees) the incur.
If the book is sold to a traditional publisher, likely they will carry "media perils insurance." Ask to be added as additional insured. If you are not a party to the publishing agreement, ask the party that hired you to agree to make best efforts to have the publisher name you as an additional insured. If you rely on source material provided to you by a collaborator, you may wish to exclude those materials from your representations and warranties.
TIP. Since verifiable truth is a complete defense to libel (at least in the United States), you should retain copies of all recorded interviews, transcripts, books, notes, letters, and other research materials used to prepare the manuscript. If there is a lawsuit, you may need to prove that you used due care to research and write the book. (see §9.12.1, The Copyright Permission and Libel Handbook (John Wiley & Sons).Death & Disability. In the event of death or disability, does the surviving or non-disabled author have the right to hire a new writer? It will require a financial formula for paying the new writer from money otherwise due to the departing (or departed) writer. The typical clause will put limitations on what can be paid to that person. The limitations will be based on the value of what the original writer contributed.
When a collaborator dies, their rights in any copyright-related contracts become part of their estate. State law will determine who the beneficiaries or heirs are. If an older work, the order of succession may be determined by the Copyright Act - not the deceased author's will or intestacy laws. For an article on the order of succession under the Copyright Act (which may trump an author's will), click here.
Confidentiality & Non-Disparagement. The downside of not including confidentiality and non-disparagement clauses in a collaboration agreement is reputational harm. Here's a well-written confidentiality clause from an "as told to" collaboration agreement, which unfortunately was never signed:
All material whether oral or written contributed by either party for use in the manuscript, including materials and information provided before 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, Writer 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 Writer, 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 non-disparagement clause is particularly relevant if you a public figure or celebrity.
You agree that you will not (nor will you cause or cooperate with others to) publicly criticize, ridicule, disparage or defame Subject, their family, their 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.The subject's lawyer might add a clause that requires the writer to agree to treat the ghostwriter agreement itself as confidential.
In terms of remedies for breach, in addition to injunctive relief, a ghostwriter might be required to forego royalties or repay amounts previously paid, but any such remedy will be subject to scrutiny by the courts and a possible finding of unenforceability.
Breaking Up is Really Hard to Do
If you can't hold it together long enough to see the work published, the impact of a literary breakup can be devastating. For example, the failed collaboration between Fay Vincent, the former commissioner of baseball, and writer David Kaplan. After 90% of Vincent’s memoir was completed, Vincent withdrew the project from his publisher. Further, the thwarted Kaplan’s efforts to publish the book under Kaplan’s own name. See, Kaplan v. Vincent, 937 F. Supp. 307 (SDNY 1996). If the parties had a well-written agreement – as opposed to an oral understanding, costly and time-consuming litigation could have been avoided. Kaplan might have negotiated the right to complete the manuscript and sell it under his own name, subject to Vincent's financial participation. In rare instances, writers may agree to a separation of rights.
Conclusion. Collaboration. Is it double the trouble or half the work? You decide. In any event, a collaboration agreement provides a chance for you to fashion your own private body of law to govern your creative relationship. Ideally, the time to address these matters is before the actual creative process begins. Although collaborators might not feel comfortable discussing these issues, it is always easier and less expensive to deal with these matters up front rather than after a dispute arises.
The Nine Categories of Works that Qualify As a Work for Hire
• a contribution to a collective work (e.g., part of a periodical, anthology, encyclopedia, etc.);
• a part of a motion picture or other audiovisual work;
• a translation;
• a supplementary work (e.g., foreword, illustration, editorial notes, musical arrangement, test answers, bibliography, appendixes, etc.);
• a compilation (an original manner of selecting or arranging preexisting works);
• an instructional text;
• a test;
• answer material for a test; or
• an atlas.
Lloyd J. Jassin is a publishing attorney and entertainment lawyer in private practice. He concentrates on business and legal issues affecting composers, authors, literary agents, and publishers. He began his career in book publishing, working for companies such as Prentice Hall / Simon & Schuster and St. Martin's Press, in publicity and marketing, which explains his affinity for trademark law. Later in his career, he worked in the law department of Viacom International, the world's largest syndicator of television programs. He is co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons).
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