Friday, December 23, 2022

Joint Authorship and Memoir Writing

 


 

"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)


Almost fifty percent of marriages in the United States will end in divorce. The odds are no better with creative partnerships than with romantic ones. Pity the poor expert or public figure who engages a writer without thinking about the financial, emotional, and practical challenges ahead of them.  If the relationship falters, a well-drafted collaboration agreement (written during the romance stage of the relationship) can be consulted.   

What Are Collaboration Agreements?

Like a prenuptial agreement, a  plain-written collaboration agreement is an excellent tool if you wish to protect your intellectual property.  A collaboration agreement defines the parties' goals, and such key points as compensation, creative control, copyright ownership, credit, and how to handle disputes. 

How you choose to address these issues depends largely on your sense of fairness, your bargaining power, industry custom and practice, and, if you are represented by an attorney, their guidance in reaching a workable agreement.   

The Law Presumes 50/50 Ownership

In the absence of a written agreement, the way copyright law deals with co-authorship is to divide ownership of the work 50/50.  That allows either party to 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. The default rules imposed by the Copyright Act may be altered by contract. 

Decision-making problems arise when there are multiple offers for the work or requests for exclusive rights and no written agreement exists between the parties.  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 other party from licensing or selling rights. A celebrity, or the subject of the book, will naturally want final approval over the business and creative decisions. Relinquishing control, or foregoing credit, however, does not necessarily mean the writer receives a smaller financial interest.  Neither does it equate with a lack of accountability or transparency, provided those concerns are advanced by the party drafting - or negotiating - the agreement.  

Ghost Written & "As Told To" Books


Be certain that the tone of the book is agreed to before starting.  If a memoir, what information is the writer allowed to disclose?  Is the writer's role to put the best face on the subject’s story, without resorting to blatant deception?  In drafting the agreement, the subject's attorney will structure it so payment to the writer is tied to the delivery and acceptance of the manuscript.  

Compensation is generally in the form of progress payments tied to satisfactory (and timely) delivery.  A portion of the writer's fee is paid on signing the ghostwriter or collaboration agreement.  A 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 payments of the advance.  The greater you detail what is to be delivered, the less arbitrary the acceptance standards will be.

The agreement should address the financial consequences of the subject or writer walking away from the project before completion. One such disaster scenario is the unilateral termination of "as told to" collaborations, such as the failed collaboration between Fay Vincent, the former commissioner of baseball, and writer David Kaplan, who worked without a contract, on the chance a publisher would acquire the book and pay them an advance.  The authors signed a deal with Little Brown, which promised to pay them an advance of $300,000, half of which was paid on signing, with the balance due on delivery and acceptance of the complete manuscript.  After 90% of Vincent’s memoir was completed, Vincent withdrew the project from his publisher, which required him to repay the advance. However, he allowed Kaplan to keep his share of what had already been paid, or $60,000.  While Kaplan and Vincent had exchanged draft versions of a collaboration agreement before their relationship devolved into an intractable dispute, the issue before the court was whether Vincent could prevent Kaplan from publishing any of the work they created.  See, Kaplan v. Vincent, 937 F. Supp. 307 (SDNY 1996).  Because they were friends, Kaplan "did not believe a formal agreement was necessary."   If they had a formal agreement – as opposed to an oral understanding -- costly, time-consuming and psychologically draining litigation would have been avoided.

The Elements of the Deal

Some of the deal points found in these agreements are quite simple and others are not.   Below are the major elements of a typical ghostwriter or collaboration agreement.  Whether you push and push, or settle for less, is between you and your attorney (or agent).  But, don't lose sight of the fact a workable agreement, is often a reasonable agreement.

Responsibilities. Be specific.  What must be delivered?  What is the delivery date?  When you engage a writer to help you write a nonfiction book, generally, the writer will prepare a book proposal before completing the manuscript.  A book proposal is a detailed overview of the book, it contains the author’s credentials and information about how the book can be marketed, plus one or two sample chapters.  The proposal is the bait used to solicit interest from publishers. A nonfiction book 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.

In some circumstances, where one party is more knowledgeable in publishing matters, it may be appropriate to grant that person the exclusive right to negotiate with agents and publishers. If you are not the one shopping the proposal, you will either reserve the right of final approval of the publishing contract, or predicate approval on receiving some minimally acceptable payment.  

Compensation.  If one of the parties has greater immediate financial needs -- whether money is needed to pay their rent or for travel-related research -- the other party can defer all or part of their compensation from the initial advance.  As discussed above, it is customary for commercial publishers to advance a sum of future royalties to the authors when they sign a publishing agreement.  A cash advance is like a payday load.  Once that money has been recouped from sales of the book, 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 the subject of a book to obtain the services of a more experienced writer without having to go out of pocket for a large sum.


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 the return of 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 stings out of a failed collaboration. In other types of creative divorces, it may be possible to separate out each author's contribution and transfer those rights to the original contributor. 


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 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 a public figure or an expert (but not an expert writer) go from idea, to book proposal to finished manuscript to published author.

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 with the fact the subject will receive sole authorship credit. Some might argue that ghostwriters should receive higher fees, because their names don’t appear on the finished book.   In the case of an equal in credit collaboration agreement, the size and prominence of names, as well as the order of names on the cover and title page, needs to be negotiated and agreed to in writing.

Copyright.  A work for hire is a term defined by statute.  It can either be a work specially commissioned, or one created by a regular employee in the course of their employment. If you are the hiring party, it is especially important to clarify the nature of the writing services before you hire the person you wish to perform those services.  Later may be too late if your objective is to own all of the rights. After-the-fact attempts to classify a work as "for hire" often fail, which is why an effective contract includes a backup copyright assignment.  

Death & Disability.  In the event of  either party's death, disability or an intractable disagreement, the agreement should have rules for hiring a new writing partner to complete the book. The agreement might specify that the authority to enter into contracts and make creative decisions, vests solely in the subject's estate, or the writer (subject to a duty to account).  If a work is likely to be revised, the agreement should include a clause that allows the remaining author to revise the work and reduce the compensation paid to the other's heirs or representatives if it becomes necessary to hire an outside writer.  The agreement should also specify whether the person hired to complete the work is entitled to receive credit as an author.  

Control of Business & Editorial Matters. Control of business affairs (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?) are critical 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 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.  Requiring the party with approval rights to provide detailed editorial reasons for any dissatisfaction, arguably, establishes objective criteria by which the writer can revise and have their contribution judged.

Representations & Warranties.  From a ghostwriter, or "as told to" writer's perspective, the subject must provide representations (or promises) and warranties that they have or will: (i) provide access to pertinent documents, whether 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 required 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.  

Reciprocal representations and warranties are the norm as well.  They include: (i) no contractual commitments (e.g., a confidentiality agreement) exist that will interfere with the ability to perform their obligations; (ii) 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 any liability arises because of a breach of either party’s representations or warranties, the non-breaching party should be reimbursed for costs and expenses (including reasonable attorney's fees), and damages paid out to others.   If you are a "for hire" writer, meaning, the copyright vests in the party that hired you, the agreement should require the hiring party to make best efforts to have the publisher name you as an "additional insured" on the publisher's media liability policy.  If a writer is relying on material provided by the person who hired them, they should exclude this material from their own representations and warranties.   

TIP.  Since verifiable truth is a complete defense to libel (at least in the United States), your agreement should require that both parties retain copies of all recorded interviews, transcripts, books, notes, letters, emails and other research materials used in the preparation of the book. If there is a lawsuit, you may be required to prove the truth of the statements that are published. (see §9.12.1, The Copyright Permission and Libel Handbook (John Wiley & Sons).

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-draft confidentiality clause can prevent someone from using that information against you, or for personal gain.   

Here's an example of the confidentiality clause from the unsigned collaboration agreement between Fay Vincent and David Kaplan discussed above:  

"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."

The subject's lawyer will also include a provision that requires the writer to agree to treat the ghostwriter agreement itself as confidential.   One common error is not to include exceptions, such as sharing the agreement with your agent, attorney, tax preparer, or as compelled by a court or government agency (e.g., the IRS).  In terms of remedies for breach, in addition to injunctive relief (necessary because "A lie can travel halfway around the world while the truth is putting on its shoes." -- Charles Spurgeon), the 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.  

Conclusion

The time to address these issues is before the actual creative process begins. Although collaborators might not feel comfortable 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.

Friday, June 17, 2022

Copyright Recapture: How to (Legally) Break Your Publishing Contract


How to Get Back Your Book Rights After 35-Years

Copyright Termination, Reclaim Your Copyright
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The length of most author, screenwriter, and songwriter contracts corresponds to the duration of the work's copyright. Today, copyright lasts nearly one hundred years from initial publication. Fortunately, there's a powerful, but little-known, provision in the Copyright Act that makes life of copyright contracts unenforceable. 
 
Section 203 of the Copyright Act is a reset button allowing authors to reclaim their copyrights and regain their rights.  
To protect writers, artists, and musicians from bad deals signed after 1978 by their younger selves, the Copyright Act gives them (and their families) a mulligan - a second opportunity to negotiate better terms or exit from an undesirable deal.
I've filed termination notices for more titles than almost any other publishing attorney. Provided copyright termination notices are properly prepared and timely filed, termination can be accomplished "at any time during a period of five years beginning at the end of 35 years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever is earlier."

Section 203 applies to grants of copyrights made by authors on or after January 1, 1978, rather than grants made by their heirs. Interestingly, it applies to the transfer of pre-1978 works if the transfer was made after January 1, 1978. For example, a film option signed by Stephen King in 1994 for Carrie, a novel written in 1974, is eligible for termination between 2029 and 2034.

Works for hire are immune to statutory termination.
However, the concept of work for hire is complicated. Therefore, just because a contract says a work is a work for hire or created in the course of employment does not make it so. Additionally, the termination right does not apply to foreign grants. 
 
In the United Kingdom, however, under narrowly prescribed circumstances, 25 years after an author's death, rights revert to the author's estate. In Canada, 25 years after the death of an author, under a broader scope of circumstances, rights automatically revert to the author's estate. Here is a link to an excellent article by Professor Rebecca Giblin about reversion and allied rights outside the U.S.

They Don't Make It Easy

If you wish to terminate a rights agreement, a notice of termination must be signed, served, and recorded with the Copyright Office. In other words, t
he process of reclaiming copyrights is not automatic. 
 
The Copyright Act gives the termination rights holder the option, but not the obligation, to reclaim their copyrights. As a result, much to the joy of publishers, the vast majority of termination rights expire without being exercised.
  
It is your responsibility to calculate the termination date. It can be anytime during a five-year window beginning the earlier of (a) thirty-five years from the date of first publication or (b) forty years from the date of execution. A notice of termination may be served ten years before the effective termination date or as late as two years before. A missed deadline or improperly drafted notice is a fatal mistake.

Example: Andrea signed a contract for her first novel on September 26, 1989. The book was published on September 26, 1992. The termination window is from September 26, 2024, to September 26, 2029. The earliest Andrea (or her surviving family members) may serve the notice of termination is September 26, 2014, ten years before the earliest possible termination date. The latest Andrea (or her surviving family members) may serve notice is September 2027, two years before the latest possible termination date.

Andrea must serve the notice on her publisher or publisher's successor, fill out the appropriate paperwork and record the notice of termination with the Copyright Office. This public record becomes part of the work's chain of title, establishing legal ownership. Andrea's name and termination notice would appear in the title chain if anyone were to review the Copyright Office's database.

Derivative Works Exception

Under what's known as the "derivative works exception," a derivative work produced before termination may continue to be exploited under the terms of the license agreement. For example, a motion picture adaption of Andrea's novel can be streamed post-termination, subject to the studio's duty to account to Andrea. With the proviso, the studio may not create new derivative works covered by the terminated grant of rights.

Joint Works

In the case of joint works created after 1977, a majority of the coauthors must sign the termination notice.  
 
The 56-Year Termination Rule

For works published before January 1, 1978, the maximum term of protection for certain works was 56 years. Over time, Congress increased the term of copyright protection from 56 to 75 years. In 1998 Congress increased the term again by 20 years for a total of 95 years. Congress also created a new right of termination for pre-1978 grants, licenses, and assignments. 
 
For these older works, the Act provides a five-year termination window beginning 56 years after a work was first published or registered for copyright. To terminate, the author, or their surviving spouse and children, must serve and record the termination notice within the time limits specified by the Copyright Act. If not terminated, the agreement will continue for the duration of the agreement. Unlike post-1977 grants, licenses, and assignments, pre-1978 grants, licenses, and assignments made by an author's widow, children, and other statutory beneficiaries, are terminable.

Case & Comment. In 1938 Jerry Siegel and Joe Schuster, two young men from Cleveland, Ohio, signed over all of their rights to the Superman character to DC Comics for $130.00 and vague promises of future work. To address this and similar economic injustices, Congress gave authors a second chance to strike better financial deals. As a result, in 1999, using Section 302 of the Copyright Act, Siegel's heirs recaptured his rights to the Superman character. Unlike authors of joint works created after January 1, 1978, each author of a pre-1978 joint work may serve a notice of termination on their own behalf and recapture their share of the copyright.

Fortunately, you don't have to be related to a man of steel to reclaim copyrights. The heirs of Hank Williams, William Saroyan, Truman Capote, Joe Young, Lorenz Hart, and many others have availed themselves of these valuable rights.

Estate Planning Considerations
 
As part of your estate planning, advise your statutory successors of your right to terminate. If you do not survive to exercise termination, that right is distributed to your family members as a statutory class. They may exercise this powerful right despite any agreement to the contrary. While copyright termination rights are kryptonite to copyright contracts, read on how this right can unintentionally be waived (given up).

Hoping they will catch family members off guard, publishers and motion picture studios may make offers to sweeten existing contract terms after an author dies.

Before signing an agreement that revokes and re-grants rights, family members should carefully review the document and consult with a termination rights attorney. If asked to sign during the period termination could be effected, they may be waiving their right to terminate.

If that later agreement revokes a publishing agreement, or film option, in exchange for a new contract, the new contract should be a significantly better deal than the previous grant. If not, they've lost the opportunity to renegotiate the terms of the agreement.

Bottom Line

Call us if you are thinking about exercising your termination rights or need assistance renegotiating your entertainment or publishing agreement. Fees will depend upon the complexity of the matter and the number of works being terminated. We can help you: (i) identify which copyrights are eligible for termination; (ii) determine who is the proper party to exercise those termination rights; (iii) prepare and record the notice of termination; (iv) help you renegotiate your existing contract; or (v) work with your trusts and estates attorney on reopening an estate, or seeking copyright damages that flow from a determination of ownership or co-ownership of a recaptured copyright.

NOTICE: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

LLOYD J. JASSIN is a New York publishing and entertainment attorney with a special interest in copyright and trademark matters. He is co-author of The Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons). He is former adjunct professor at the NYU School of Professional Studies were he taught a course on digital rights. He has written extensively on negotiating contracts in the publishing and entertainment industries and has been quoted extensively in publications such as the New York Times, Publishers Weekly and Columbia Journalism Review. You may reach him at jassin@copylaw.com or at (212) 354-4442. His offices are located at 1501 Broadway, Floor 12, New York, NY 10036.

(c) 2011 - 2022. Lloyd J. Jassin 
 

 
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