By Lloyd J. Jassin
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.
Responsibilities. 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, the writer will prepare the book proposal. A book proposal is 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 the bait 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.
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.
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 initial advance. In exchange, the recipient may forgo 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 themselves 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 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. 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 Celeb and Writer" or "by Celeb with Writer" or "as told to Writer." By definition, if the book is ghost written, sole authorship credit for the work will be in the subject’s name only. In that case, the writer-for-hire must make peace with the fact the subject will receive sole authorship credit. Some would argue that ghostwriters should receive higher fees and larger advances, because their names don’t appear on the finished book.
Copyright. Action Item! If you do not intend the work to be owned (and controlled) jointly, you must state that in the collaboration agreement. The collaboration agreement must also contain a special work for hire clause, and, ideally, be signed prior to any work being done. A work for hire is a work specially commissioned, or one created by a regular employee in the course of their employment. In either instance the creator does not own the copyright, the client or employer does.
Death & Disability. Under the default copyright rules, if a collaborator dies, their beneficiaries or statutory successor step into their 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.org/2011/08/copyright-termination-is-author-right.html.
A well-written collaboration agreement might specify that the surviving author (subject to a duty to account to the deceased collaborator’s heirs) takes over editorial responsibilities. If the book is likely to be revised, the collaboration agreement might also contain a provision that allows the surviving partner to reduce the compensation paid to the collaborator's heirs if substantial revisions are made to the text, or it becomes necessary to hire an outside writer to keep the work up to date.
Control Over the Manuscript. 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.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 is 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 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)).
If you intend to self-publish, keep in mind that you are 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 and other issues, it is always easier and less expensive to deal with these matters up front, rather than after a dispute arises.
© 2013 - 2014. Lloyd J. Jassin.
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
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