Thursday, January 28, 2010

Collaboration & Ghostwriter Agreements

How to Avoid Common Business & Legal Mistakes

By Lloyd J. Jassin

In today's popular culture we see a steady stream of articles, books, plays, screenplays and other works being written collaboratively. Thanks to online collaborative tools, you don't even have to be in the same room to collaborate in real time. Consequently, more and more creative brainstorming is taking place today than ever before. However, in my experience, most of it is taking place informally without regard to copyright and other legal consequences. In this article I outline how to structure collaboration and ghostwriter agreements. As you will read, it is critically important for authors, agents, and publishers, to understand the basic terms and strategic variables that arise when two (or more) authors work together. A note of caution! Authors should consider all of the issues raised in this article before they start brainstorming and exchanging drafts.

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, and thus help avoid misunderstanding. If avoiding conflict is not sufficient reason for having a written collaboration agreement, take note that many publishers contractually require – as a condition of working with the author team – that joint authors have a formal written agreement between them.

The Law: Collaboration Presumes Equal Control and Ownership

The essence of the collaboration agreement is copyright ownership. In the absence of a written agreement, when two people collaborate, there is a good chance the ensuing work will be considered a joint work The formal legal definition of a "joint work" is "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole" (1976 Copyright Act, Section 101).

Many hiring parties are caught unaware of the consequences of working without a written agreement. 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. 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-written agreement – as opposed to oral understanding -- legal entanglements, likely, would have been avoided.

Identify Special Issues

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. For example, it is perfectly legal for a commissioning party to receive final approval over all aspects of the project, and for the scribe or writer to receive less than 50% of the profits otherwise dictated by the Copyright Act.

Since collaboration and ghostwriter agreements do not involve an equal division of work, there must be mutual respect and objectives. If you are not familiar with the intricacies of the publishing industry, or wish to insulate your creative or personal relationship from the business aspects of your literary partnership, engage a lawyer with an understanding of the publishing industry. Make certain that attorney understands your goals. Is it more important to have a book that establishes you as an expert, than an additional 10% share of the royalties? Lawyers are often surprised to find out what their client’s real goals are.


An Overview.

Here are the key issues to address in a collaboration or ghostwriter agreement. Of course, how collaborators split proceeds and make decisions, ultimately, depends on the writing partners’ respective bargaining power, and innate sense of fairness.

Duties. Action Item! Try to be as specific as possible about what is to be delivered, and the time for delivery. When you engage someone to assist you with the writing of a nonfiction work, writer will prepare the book proposal. A book proposal a detailed overview of the book’s concept, and contains the author’s credentials and information about how the book can be marketed. 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 as follows:


Writer shall use best efforts to prepare a full book proposal, which will be used to sell the Work to publishers (the "Proposal"). The proposal will be double-spaced, consisting of a preface, introduction, and sample chapter. In consideration for preparing the Proposal, Subject shall pay Writer the non-refundable sum of $X,XXX (the "Proposal Fee") due upon execution of this Agreement. One Hundred (100) percent of the first $X,XXX 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 6 (the “Publishing Agreement”), Writer shall further research, prepare, write and deliver the Work.
In some circumstances, where one collaborator 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 a professional writer working with a celebrity or other public figure, there are additional critical issues to consider. 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” portrait? Or, is your role to put the best face on your subject’s life story, without resorting to blatant deception? Since progress payments are the norm, if the subject is unhappy, you may not see anything beyond your initial payment or advance.

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. A related issue is who has the right to exploit the material already written if the project is canceled or the collaborators decide not to work together. If the authors’ 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.

Compensation. If one collaborator needs money to get through the period in which they are writing the book, the parties can agree that that person will receive a larger share of the advance. In exchange, the recipient may forego a percentage of future royalties. Alternatively, that money can be recouped or refunded from future proceeds, with any additional monies shared as set forth in the authors' agreement. Often, the sharing of expenses is related to the sharing of receipts. For example, 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 himself or herself is to take a smaller up-front fee, in exchange for a percentage of royalties. While conventional wisdom says most books don’t earn back their advance, 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, 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 finished work) 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. 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. For the avoidance of litigation, I recommend that the “subject” (and the writer) consult an attorney to preempt problems regarding ownership and credit. 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.

Author credit designators 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. Remember Ashlee Simpson lip-synching (badly) on SNL? While that was considered a deceitful practice, in the world of letters (as opposed to the world of academia) getting extra help from a ghost is not generally frowned upon. Unlike James Fry, author of A Little Million Pieces, who misdescriptively called his novel a work of nonfiction, as a general rule, there’s no perceived breach of public trust when a celebrity, expert or politician hires a professional writer to write a book. Why? Perhaps, the reading public understands that the credited author’s expertise is the engine that drives the work.

Copyright. Action Item! If you do not intend the work to be owned (and controlled) jointly, state that in writing in the collaboration agreement. And make certain that the collaboration agreement has a well-drafted integration clause. Additional, non-contractual steps can also be taken to shore up the presumption that the work is not a joint work, but the best advice is to get it in writing.

Under the default copyright rules, if a collaborator dies, his/her beneficiaries or statutory successors step into his/her shoes. Who those successors actually are is not always clear. Sometimes the order of succession is determined by some testamentary document, like a will or trust. Other times, who succeeds to a deceased author’s rights is determined by the Copyright Act itself. It a all depends. For an article on the order of succession under the Copyright Act (which trumps what may be in a will), read my article on copyright termination and estate planning at: http://www.copylaw.com/new_articles/copyterm.html

Nonetheless, the agreement might specify that the surviving author - subject to a duty to account to the deceased collaborator’s heirs – take over editorial responsibilities. If the 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 if substantial revisions are made to the text, or it becomes necessary to hire outside writers to keep the work up to date.

Control & Approval. 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. Action Item! If one party retains approval rights over the manuscript, the other party should try to impose reasonable limitations, such as a chance to correct the manuscript within (e.g., 30) days after receipt of the other party’s comments. One way to avoid disputes over what constitutes a satisfactory manuscript is to reference the approved book proposal. A typical provision may look like this:

Provided Subject has made herself available to Writer as set forth in Paragraph X, Writer shall deliver a complete Proposal, satisfactory to Subject in content and form, on or before __________. Subject shall have the right to approve the Proposal. 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. Subject shall have the right to approve the final text of the Work prior to the delivery date specified in the Publishing Agreement, such approval not to be unreasonably withheld or withheld.




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.

Warranties. 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.


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. 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)).

With the advent of new printing technologies, collaborative works – whether ghosted or written in true partnership – are practiced with greater frequency. If the size of your publishing venture seems modest by commercial publishing standards, keep in mind that you are still bound by the same rules that apply to bestselling authors and large scale commercial publishing ventures. The collaboration agreement provides a chance for you – preferably, under the guidance of a qualified attorney – to fashion your own private body of law to govern your creative relationship. Ideally, the time to address the major issues confronting contributors and collaborators is before the actual creative process begins. Although collaborators might not feel comfortable discussing long-term financial issues, or even the death of a collaborator, it is always easier and less expensive to deal with these issues up front, rather than after a dispute arises.

© 2010. Lloyd J. Jassin. All Rights Reserved.

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.

Lloyd Jassin is a book publishing and entertainment attorney based in NYC. 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, trademark registration, prosecution and litigation. He is the coauthor of The Copyright Permission and Libel Handbook (John Wiley & Sons). He can be contracted at: The Actors’ Equity Bldg, 1560 Broadway, NYC, 10036, (tel.) 212-354-4442); (Email), or visit: http://www.copylaw.com/. Follow us on Twitter: http://twitter.com/LloydJJassin


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