"I can never understand how two men can write a book together;
to me, that's like three people getting together to have a baby."
-- Evelyn Waugh (novelist, Brideshead Revisited)
We have all heard the statistic; almost fifty percent of marriages in the United States will end in divorce. The odds are no better with literary partnerships than with romantic ones. Pity the person who collaborates with another writer or who hires a ghostwriter without fully discussing their expectations. A clear and understandable collaboration agreement is an effective, and relatively painless, way to reduce the potential financial, emotional, and practical challenges ahead. And the best time to draft a collaboration agreement is during the romance stage of the relationship - before your start collaborating.
What Is a Book Collaboration Agreement?
A collaboration agreement defines the parties' goals and sets boundaries, including who owns and controls the intellectual property rights. By addressing key points such as copyright ownership compensation, creative control, credit, and how to handle disputes each party knows what to expect of the other. How you address these issues depends largely on your position (hiring party or joint author), industry custom, and, if you are represented by an attorney, their guidance in reaching a viable and sign-able agreement.
Joint Authorship and Copyright Ownership
Generally, in the absence of a written agreement, when two or more people collaborate, each is considered the “author” and the owner of the copyright. The exception to this rule is "work for hire," which is a "specially ordered" or "commissioned" work that requires a written agreement.
The Copyright Act defines a joint work as “prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” The key requirement “is the intention, at the time the writing is done, that the parts be absorbed or combined into an integrated unit.” Although they may contribute copyrightable expression, it would not be plausible to consider a book editor at a publishing house as a co-author.
When a joint work is formed, either party may publish the work without the other's permission. Equal ownership under the Copyright Act also presumes that each writer receives 50% of the profits. Judges do not apportion a larger or smaller share based on the collaborators' contributions, experience, reputation, or seniority. Fortunately, the default rules imposed by the Copyright Act may be overridden by contract.
Decision-making problems may arise if there are multiple offers for the work or requests for exclusive rights and no written agreement exists. If there is no written agreement, or the agreement fails to address the issue, an uncooperative co-author (or a deceased co-author's estate) can prevent the sale or license of exclusive rights.
Things to Consider When Hiring a Memoir Writer
An equal sharing of rights should be reserved for relationships where both the writer and subject truly intend to be joint authors. A "work for hire" is probably what many people would have contemplated had they thought about it when hiring a ghostwriter or independent contractor. With a work-for-hire, the commissioning or hiring party, not the writer, is considered the author and owner of one hundred percent of the work.
A formal ghostwriter agreement it should contain the legal phraseology, "the parties expressly agree that the work shall be considered a work made for hire." After-the-fact attempts to classify a work as a work for hire are not recognized in all states. For this reason, it's considered best practice to include a backup copyright assignment in work for hire agreements.
What other terms should go into a ghostwriter agreement? It's important to lay out what the writer is allowed to disclose. Is their job to put the best face on the subject of the story without resorting to blatant deception? How many words? The average word count for a general interest nonfiction book clocks in between 50,000 to 60,000 words.
Compensation is generally paid as progress payments tied to satisfactory (and timely) delivery. Generally, a portion of the writer's fee is paid on signing a ghostwriter or collaboration agreement. So, you will need to establish milestones and deadlines, whether for the proposal or the final manuscript.
If a book proposal is contemplated (discussed below), further payment will be due on delivery of an acceptable book proposal. If the book is sold to a publisher, further payments will be tied to the advance payments. The agreement should address the financial consequences of one of the parties walking away from the project before completion. 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 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.
Are you sharing money on a percentage fee basis? If so, you must agree on dividing monies from the sale or license of book and other rights (e.g., film, television, live stage). Generally, the share of money a ghost or collaborator receives from the sale or license of book rights will look different than the percentage of monies they receive from selling the subject's life story rights to a film studio.
The Elements of the Deal
With a work by joint authors, if one party is more knowledgeable in publishing matters, you may designate that person as the point person to negotiate with agents and publishers. The less knowledgable party may predicate their approval on the contract on receiving some minimnally acceptable terms.
Compensation. In traditional publishing, authors receive an advance against future royatlies. An advance is a sum paid out in two or three installments, generally, one-half on signing, and one-half on delivery and acceptance of the complete manuscript. An advance is a loan against the book's future earnings. Once that money has been recouped from book sales, the author who deferred can start getting paid. Deferring payment is sometimes a way for the commissioning party to obtain the services of a more experienced writer without having to pay a large amount of money. If you are sharing money you receive on a percentage basis, it's important to agree on the percentage fee for different rights, for example, film and television versus book related rights.
Author Credit. By some estimates, up to 70% of nonfiction books are ghostwritten. For example, 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 credit. Clearly, a talented writer, who knows the ins and outs of publishing, can take an idea, sculpt a book proposal, and turn that into a publishable manuscript.
Writing credits take various forms. The most common writing credits are: "by Subject and Writer," or "Subject with Writer," or "as told to Writer." By definition, if the book is ghostwritten, sole authorship credit for the work will be in the subject’s name only. In that case, the writer-for-hire must make peace that the subject will receive sole authorship credit. Some might argue that ghostwriters should receive higher fees because their names don’t appear on the book jacket. The order and prominence of the names on the cover and title page should also be discussed and agreed to in writing.
Copyright Ownership. In the event of a creative divorce, except in the case of a true work for hire, it may be possible to separate out each author's discrete contribution and transfer those rights to the original contributor. One permutation of this is, "the copyright ownership of the material provided by each party shall revert to and revest in the contributing party with the result that neither party shall be permitted to use the materials contributed by the other without such others written permission."
Death & Disability. In case of either party's death, disability, or an intractable disagreement, the agreement should have rules for hiring a person to complete the manuscript. If the party who commissioned the work is deceased, or disabled, then their literary executor, or estate representative, may assume that role. If the book will be revised and updated, for example, a textbook, the agreement should include a provision allowing the non-departing author(s) to revise the work and reduce the compensation paid to the departing author or their heirs. The agreement should also specify whether the person hired to complete the work, or undertake the revision, can receive credit as an author.
Business & Creative Decision-Making. In the case of a joint work, control of business affairs (i.e., who is responsible for seeking offers and approving contracts) and editorial matters (i.e., who has the authority to approve the manuscript) are central issues. Unanimity may be required for certain decisions (e.g., approval of the initial publishing contract). If one party retains approval rights over the manuscript, the contract should require that party to notify the other party within X days after delivery if the manuscript is acceptable. If not acceptable, they should provide written comments, or recommendations, on what improvements are needed to make the manuscript acceptable. Requiring the party with approval rights to provide detailed editorial reasons within X days after delivery, is a bulwark against termination of a writer for mere convenience.
Representations & Warranties. From a ghostwriter, or "as told to" writer's perspective, it's important to have the subject promise that they will: (i) provide access to pertinent documents (e.g., diaries or memorabilia or business papers); (ii) provide reasonable access to themselves; (iii) use their best efforts to provide the writer with access to other individuals as may be needed to write or finish the book; and (iv) cooperate in good faith with the writer in pursuing a publishing deal. Special attention should also be paid to the indemnity clause. An indemnity is a promise to reimburse the other party should they breach their warranties.
The contract should contain representations that certain facts are true on signing and will remain so throughout the life of the agreement. Typically, the representations include, (i) there are no contractual commitments that will interfere with the ability to perform their obligations; (ii) that their contributions are original and will not violate any copyrights, proprietary rights, or rights of privacy, publicity, or constitute a libel against, or violate any other common law rights or other rights of any person or entity. If the writer-for-hire relies on material provided by the person who hired them, that material should be excluded from the writer's representations and warranties.
Whether you are the author or a writer-for-hire, it's reassuring to be named as an additional insured on a publisher's media perils policy. While the big five publishers all have media perils policies, smaller publishers may not.
Confidentiality & Non-Disparagement Clauses. 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 someone from using that information against the discloser for personal gain.
Here's a sample confidentiality clause from an unsigned collaboration agreement between Fay Vincent Jr. (the former commissioner of baseball) and writer David Kaplan. Back story. The two were to receive an advance of $300,000 for Vincent's tell-all memoir, split 60/40, with half payable on signing. According to Kaplan, "Vincent sat for interviews, told stories and made a few editing changes." At some point, the former baseball commissioner got cold feet, and terminated his publishing contract with Little Brown & Company. Kaplan then sued Vincent for control of the manuscript. It did not end well for Kaplan. The unsigned collaboration agreement was deemed unenforceable, and, the court refused to decide the joint authorship issue on a motion for summary judgement."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 ...."
An effective contract might also 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."
Ironically, we would not have access to Vincent's attorney's confidentiality and
non-disparagement clauses but for the litigation.
Conclusion
The time to address these issues is before the actual creative process begins. Although collaborators might feel uncomfortable discussing long-term financial and other issues, an effective agreement deals with these matters upfront rather than after the brickbats start flying.
Disclaimer: This article, parts of which were previously published, discusses general legal issues of interest and is not designed to give any specific legal advice concerning any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the advice contained in this article.
About Lloyd J. Jassin. I'm a book publishing attorney. I help authors, agents, and publishers avoid contractual traps for the unwary and negotiate win-win deals. I will let you know if a contract is viable and what it will take to make it signable. I'm available to answer questions about book contracts, film options, copyright, and privacy 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, I can help you avoid trademark infringement by doing a trademark clearance search and registering your mark. Before becoming a lawyer, I had a successful career in book publishing, working for Simon & Schuster. After law school, I worked for Viacom Enterprises, the world's largest distributor of feature films and off-network television programming. Before founding my firm, I was a trademark associate at Cowan, Liebowitz & Latman. I'm the co-author of The Copyright Permission and Libel Handbook. I've been quoted in Publishers Weekly and The New York Times, taken the stage at BookExpo, and spoken at Book Industry Study Group events. I'm a former adjunct at the NYU Center for Publishing. I graduated from Benjamin N. Cardozo School of Law. I'm admitted to practice in New York and New Jersey. Location: 1501 Broadway, 12th FL, New York, NY 10036, 212.354.4444. Email: jassin@copylaw.org. Offices in NYC and Madison, N.J.
