Friday, December 23, 2022

Collaboration and Ghostwriter Agreements



"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 are all familiar with the statistic that over fifty percent of marriages in the United States will end in divorce. Well, having worked in publishing for three decades, I can tell you 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 f
inancial, 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 on multiple factors, among them the relationship status (near peer, senior partner, or hiring party), 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, the person who creates a work is considered its “author” and the owner of the copyright. However, without a properly drafted agreement, although it may be your life story, you may not own what you paid for. This is because the Copyright Act, not state law, determines copyright ownership. The Copyright Act defines a joint work as “prepared by two or more authors with the intention that their [copyrightable] 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.”

If joint work exists, 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.  

If it is your story that is being told, you will want final approval over business and creative decisions. 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

If a memoir, what information is the writer allowed to disclose?  Is the writer's role 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.

Be certain that the tone of the book is agreed to before starting. 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

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. A book proposal is your bait if you are fishing for a publisher. 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 someone else is 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 travel-related research -- the other party can defer all or part of their compensation from the initial advance.  An advance is a sum paid to the author on signing a publishing contract.  It is an advance against the book's future earnings. Once that money has been recouped from the 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. 

Remember, even those who do not qualify as joint authors for copyright purposes (for example, individuals who made an important, but not copyrightable, contribution) can receive a financial interest in a book.  Today, there are even companies that invest in, acquire, and manage the literary estates of established writers. 

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. You may be able to avoid the joint authorship presumption by opting for a work-for-hire. For a commissioned work to qualify as a work-for-hire, the work must fall into one of nine specific categories (i.e., a work specially ordered for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas). With a work-for-hire, the commissioning or hiring party, not the creator, is considered the author and owner of one hundred percent of the work. If you are commissioning a work-for-hire, it is important that "the parties expressly agree in a written instrument signed by them 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. Therefore, every work-for-hire agreement should contain a backup copyright assignment. Also, in the event of a creative divorce, 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 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. 


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: Offices in NYC and Madison, N.J.

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 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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