Thursday, January 28, 2010

Smart Collaboration & Ghostwriter Agreements

Stereograph of Sir Arthur Conan Doyle(s).  Circa 1900
Public figures, doctors, lawyers, and other professionals, understand that hiring a professional writer increases their chances of finding a literary agent, and landing a profitable publishing deal.  This article shows how to manage collaborator (name on the cover) and ghostwriter (name not on the cover) relationships by setting down in writing how the business and creative issues will be dealt with.

One of the most important things you do before taking on a freelance writing project, or hiring a writer, is to establish written parameters. While trust is an important element of any relationship, without a written agreement you are ill-equipped to deal with conflicts. Contracts define rights and remedies. They set deadlines, budgets, compensation, address author credit, decision-making, liability, death, disability, and, if property drafted, outline a joint exist strategy. If avoiding conflict is not sufficient reason for having a written agreement, take note that many agents and publishers contractually require that collaborators have a formal written agreement between them.


The Law

The essence of the collaboration agreement is copyright ownership. Absent a formal written agreement, ownership of the book will be governed by the default provisions of the Copyright Act -- and not necessarily according to the parties' wishes.

In order to qualify as a joint work, each author's contribution must be independently copyrightable. Therefore, a copyeditor’s or proofreader’s comments or suggestions should not, absent something more, entitle them to half a copyright. If the intent to create a joint work is missing, it is possible that a court might find that the work qualifies as a work for hire, or perhaps a collective or derivative work.

In contrast to a joint work, a "derivative work" is a new work based upon an preexisting work, such as a film adaptation of a bestselling book. The owner of the new work, not the novelist, owns the copyright in the film. 

When a joint work is created, each collaborator is presumed to co-own the copyright, and share equally in royalties. Further, under the default rules of the Copyright Act – which can be altered by a written agreement -- each collaborator can license the nonexclusive rights to the work to a third party, provided they fairly account for the profits to the other.

Problems commonly arise when there are multiple offers for the work or requests for exclusive rights and no agreement exists between the collaborators. In effect, a recalcitrant collaborator can prevent the other collaborator from licensing or assigning exclusive rights in the work to a third party. Another disaster scenario is unilateral termination of the project by the subject of an autobiographical work, as was the case with the failed collaboration between Fay Vincent, the former commissioner of baseball, and David Kaplan. Illustrating the importance of having an  exit strategy, after 90% of Vincent’s memoir was completed, Vincent withdrew the project from his publisher, and 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-drafted collaboration agreement – as opposed to oral understanding -- legal entanglements would have been avoided.
TIP:  You are not bound by the default rules of the Copyright Act. You can write your own rules. That is where real world document drafting comes into play.
What Should Your Collaboration Agreement Cover?  

Below are the major business and legal issues you have to deal with in a collaboration agreement.  The best time to address them is at the before the actual collaboration process takes place. Although coauthors might not feel comfortable discussing long-term financial issues or the eventuality of a dispute or even the death of a partner, it is always easier (and less expensive) to deal with these issues up front, before the collaboration begins, rather than later, after a dispute.  
Comment.  Once you start to collaborate, unless the matter has been addressed contractually, your words and their words merge into a unitary whole. You are shackled together, equal partners, with your contribution and their's, indistinguishable in the eyes of the law.  When you create a joint work it is like baking a cake. Your collaborator is like the flour. Add the flour, eggs, sugar, and baking powder.  Bake it. It transforms into a cake.  The flour is now one with the cake.  There's no returning to the pantry.  Baking is a science.  Unlike baking, the recipe for a happy collaboration can be modified to fit the circumstances.       
Responsibilities

When you hire someone to help  you write a book for sale to a commercial publisher, they will prepare what is called a book proposal.  A book proposal a detailed overview of the book’s concept; it contains the author’s credentials; information about how the book can be marketed; and one to three sample chapters.  The proposal is used to solicit interest from publishers.  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. This scenario is common with “as told to” books. If a book proposal is to precede delivery of a complete manuscript, the contract might read, in part:

 Writer shall use best efforts to prepare a full book proposal, which will be used to sell the Work to publishers (the "Proposal").   In consideration for preparing the Proposal, Subject shall pay Writer $______ (the "Proposal Fee") due upon execution of this Agreement.  _____  percent of the first _______ received  by Writer under the Publishing Agreement  net of agency commissions and expenses incurred in preparation of the Work), if any, shall be repaid by Writer to Subject.  Following execution of an Agreement for the initial publication of the Work, pursuant to Paragraph ___ (the “Publishing Agreement”), Writer shall further research, prepare, write and deliver the Work. 
In the above instance, the writer is paid nothing beyond the fee received for the proposal, unless there is an offer for the book.  If there are no offers for the book, or the offers are too low to justify completing the manuscript, the proposal writer moves on to the next project.  

In some circumstances, where one party is far more knowledgeable in publishing matters, it may be appropriate to grant that person the exclusive right to negotiate with agents and publishers. Generally, the junior author will reserve the right of final approval, or predicate approval on receiving some set, or minimally acceptable payment, for initial publication rights to the book, and other terms usual and customary in the publishing industry.

If you are hired to write a book for someone, there are additional considerations. These issues include access to pertinent documents, access to the subject, and the subject’s good faith effort to secure the writer’s access to interviews with other individuals as may be needed to prepare the proposal or complete the book. Determine your role. If you are an autobiographer, are you delivering a “warts and all” portray? Or, is your role to put the best face on your subject, without resorting to out-and-out deception?   Since progress payments are the norm, if the subject is unhappy, unless you've addressed the issue,  you may not see any money beyond the last installment payment you received.  Is that fair?  It depends on how fair or well (from the terminated party's perspective) the agreement was drafted.  

A professional writer working on an “as told to” book may want to try for a provision that says that if the subject gets cold feet and pulls out, the writer does not have to repay his/her portion of the advance paid by a publisher.  A related issue is who has the right to exploit the material already written if the project is cancelled or the collaborators decide not to work together.

If the contributions are easily divisible (e.g., John wrote chapters 1 -9; Albert wrote chapters 10 - 14), the simple solution is for each writer to get exclusive custody of their respective materials. Things get more complicated if the authors’ contributions are not readily divisible, or a writer is let go before the parties have signed with a publisher, or someone is hired to finish what the departing collaborator started. Depending upon the facts various options exist, including a buy-out of materials already prepared (e.g., the book proposal). Sometimes the buy-out price reflects a premium for the departing author or writer agreeing not to compete with the work in progress. If the authors’ contributions have merged (i.e., there’s no practical way to separate out and revert rights to each), a collaboration agreement could help them resolve the problem. One way to deal with this scenario is to state in the collaboration agreement that “neither party may use the Work, or any part thereof, without the prior written approval of the other.” In the competitive world of publishing, allowing each joint author the right to use the merged portions freely is not a realistic option since publishers seek “exclusive” rights to publish.

Deadlines in publishing are critical. Make certain the delivery schedule set forth in the publishing agreement is realistic. A missed deadline can result in cancellation of a book contract. That, in turn, can trigger the authors’ obligation to repay their advance.

Money

If one of the collaborators needs the advance money to prevent her utilities from being shut off, there are a number creative solutions.  The parties can agree that she receives a larger share of the first installment of the advance (generally paid in halves or thirds).  In exchange, she may forego a percentage of future advances or royalties.

Ghostwriters (and other writers-for-hire) get paid in installments – after portions of the manuscript are received and approved.  Often, they work on a flat fee basis.  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 himself or herself is to take a smaller up-front fee, in exchange for a percentage of future royalties.  While conventional wisdom says that most published books don’t earn back the advance paid by the publisher, by having a stake in the book – even a small one – an insurance policy is in place if the book becomes a surprise bestseller.  Keep in mind that work-for-hire agreements alter the basic presumption that the creator owns the copyright to his or her work.  For a work-for-hire agreement to be legally binding, some states require that the agreement be signed before work begins.  It's worth noting that some types of commission work can never be done on a work-for-hire basis.  For example, novels do not fall into one of the nine categories of works listed in the copyright statute that qualify as works-for-hire.     

Even those who do not qualify as a joint author for copyright purposes (for example, individuals who made an important – but not copyrightable -- contribution to the finished work) may still share in the profits and control of a work through an appropriate contractual arrangement.

Writing 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 author credit for. Clearly, a talented writer, who knows the ins and outs of publishing, can be a great asset in helping an expert (but not expert writer) develops her unadorned idea into a book proposal or finished manuscript.

The order, size and prominence of the author credits depend largely on the bargaining power of the parties. The size and prominence of names, as well as order of names on the cover and title page, needs to be negotiated and agreed to in writing. If there is greater brand equity (or name recognition) in one collaborator’s name, it may make sense for that person's name to appear first. Where the issue is not clear-cut, alphabetical order is another sound approach.

Common credit designations include the terms "by Me and You" or "by Me with You" or "as told to Me." By definition, if the book is ghost written, sole authorship credit for the work will be in the subject’s name only. In this case, the writer-for-hire must make peace with the fact the subject will receive sole authorship credit. I would argue that ghostwriters receive higher fees and larger advances, because their names don’t appear on the book.  Currently, there’s no perceived breach of public trust when a celebrity, expert or politician hires a professional writer to write a book and fails to give that person cover credit. 

Works-for-Hire

A threshold issue when hiring a ghostwriter or illustrator, is what type of agreement should they sign.  If John wants to hire Jane to create illustrations for his book, he has four options.  Jane can license John the worldwide, non-exclusive right to include them in his book for a term of years (or in perpetuity).  As such, Jane will have the right to license those same illustrations to others (perhaps with some reasonable restrictions).   Jane can also license John the worldwide exclusive right to include them in his book, for a term of years (or in perpetuity).  Jane can also agree to assign or transfer of all of her right in the illustrations to John.  An assignment is like the sale of your home.   A license is akin to renting out your beach house for the summer. At the end of the season, the right to occupy the property reverts to the owner.  Finally, John can commission the illustrations on a work-for-hire basis.    

One of the advantages of commissioning a work-for-hire (from the hiring party's perspective) is the commissioning party owns the copyright from the get go.  This scenario is common with  ghostwritten and “as told to” books. However, this reverses the presumption that the author or artist who created the work owns the copyright.  Other benefits (from the hiring party's perspective) include absolute control over the work, including the right to create derivative works. In the case of specially commissioned works (e.g., Jane's illustrations) "unless the parties have expressly agreed otherwise in a written instrument signed by them," the person who created the work, not the person for whom the work was prepared, is considered the copyright owner. 17 U.S.C. § 201(b) (emphasis added). 

Unlike a work-for-hire, if John asks Jane to license or assign rights to him in perpetuity, in 35 years she can terminate his right of  control.  See my blog post, Copyright Owner (and Heirs) Can Break & Recapture Rights.  The best way to avoid termination of a license or assignment is a work-for-hire.   


TIP: While some contracts assert to be work-for-hire agreements, they are not.  Either they lack the "magic" work-for-hire language, or the commissioned work falls outside the nine statutorily prescribed categories of work that qualify for work-for-hire status.   
Approvals

Control of business (e.g., who is responsible for seeking out and approving book deals?) and editorial matters (e.g., who has the authority to approve the final draft of the work or authorize revisions?) critical or key issues. In cases where there are more than two authors, unanimity may be required for certain decisions (e.g., approval of the initial publishing contract). Other decisions may require a simple majority vote. Additionally, the parties may give approval rights over certain decisions (e.g., selection of a literary agent or publishing attorney) to one author, provided that person has superior knowledge and experience in such matters.

If one party retains approval rights over the manuscript, the other party should try to impose reasonable limitations on the exercise of those approval rights, such as a chance to correct the manuscript within 30 or more days after receipt of the other party’s detailed comments.  If the book proposal has been accepted by a publisher, the book proposal can be used by all concerned as the standard by which the writer's contributions will be judged.

Especially for the writer-for-hire scenario, referencing the proposal in the collaboration agreement, and requiring the subject to provide written reasons for any dissatisfaction of the manuscript, establishes objective criteria by which the writer’s contribution will be judged.

Liabilities

Special attention should be paid to the representations and warranties, and indemnity clauses. An indemnity is a promise to reimburse the other party if any of your representations or warranties are false. If you say that your contribution doesn’t infringe anyone’s copyright or invade anyone’s right of privacy, your collaborator and publisher should be able to rely on those representations. Representations and warranties keep authors and writing partners honest. They should be reciprocal. 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 fees), including damages paid to others. Great care should be given in to the drafting of the reps and warranties, and indemnities clauses.

Confidentiality

If you are the subject of a book, before revealing the private details of your business and personal life to a writer, it is customary to ask the the writer to sign a confidentiality or non-disclosure agreement.  Generally, the non-disclosure agreement forms part of the written collaboration agreement, although it can be a freestanding agreement. In addition to prohibiting the disclosure of non-public information, the agreement may ask the writer not to participate in interviews about the subject.  The agreement may also require that the writer's involvement be kept confidential.  The agreement will also make the writer responsible for breaches of the agreement by employees of the writer or others to whom the writer provides confidential information. 

Miscellaneous

Among the issues that should be addressed in a well-written agreement are how to handle prequel and sequel rights, nondisclosure and non-compete prohibitions, how expenses will be split, repayment of the advance if the manuscript is rejected, death and disability, how to value a withdrawing author’s contribution, and, perhaps, merchandising and trademark rights in the title or trade dress of the work.

If a book is likely to be revised, the agreement might also contain a provision that allows the surviving partner to reduce the compensation paid to the estate of the deceased author if substantial revisions are made to the text, or it becomes necessary to hire outside writers to keep the work up to date.  If absent in the collaboration, similar language may appear in the book publishing agreement the co-authors are required to sign.  

Both parties should take steps to ensure the factual accuracy of manuscript. Thus, if you are a professional writer working with the subject of the book, the subject should be required to read the manuscript to ensure accuracy. Since verifiable truth is a complete defense to libel (at least in the United States), your collaboration agreement should also require that both parties retain copies of all recorded interviews, transcripts, books, notes, letter and other research materials used in preparation of the book. If there is a lawsuit, you will need to prove the truth of the statements that appear in your book (see §9.12.1, The Copyright Permission and Libel Handbook (John Wiley & Sons)).

Collaborating with someone is the literary equivalent of marriage.  Like a prenuptial agreement, a collaboration agreement should be made before becoming legal partners.  By making you think through the proposed relationship in advance, the agreement can save money, time and trouble later on if that relationship does not work out.

Lloyd Jassin is a book publishing and entertainment attorney.  His an an adjunct professor at the NYU Publishing Program.  Before law school, he was Director of Publicity for the Simon & Schuster Reference Group. His practice includes drafting and negotiating publishing and entertainment industry contracts, copyright counseling and trademark registration and prosecution. He is the coauthor of The Copyright Permission and Libel Handbook (John Wiley Sons). He can be contracted at: The Paramount Bldg, 1501 Broadway, FL 12, NY, NY 10036, (tel.) 212-354-4442); (Email), or visit: http://www.copylaw.com/. Follow us on Twitter: http://twitter.com/LloydJJassin

Ghostwriter Trailer

Disclaimer: This article 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.

L