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Collaboration or ghostwriter agreements must be documented in writing to suit each unique situation. Anticipating various issues, such as deadlines, copyright ownership, confidentiality, compensation, and termination for cause, is crucial for fostering a productive and harmonious collaboration.
A surprise to many is that the timing of when the agreement is signed also impacts copyright ownership. If the agreement isn't formalized before the writing process begins, complications regarding copyright ownership may arise. In such cases, a writer could claim that they retain ownership of their contributions, potentially leading to legal conflicts. By establishing clear terms and conditions upfront, both parties can circumvent such issues and lay the groundwork for a seamless collaboration.
Joint Authorship and Copyright Ownership
If you look at The New York Times nonfiction bestseller list, you will discover that most of the books were written by someone other than the person whose name appears on the cover. If you wish to hire a writer, it's crucial to explicitly state in writing that the their contribution will be classified as a work for hire. Under a work for hire arrangement, the hiring party is recognized as the sole author and owner of the work. This ensures clarity regarding copyright ownership and protects the hiring party's interests in the project.
The Copyright Act lists two types of work for hire:
(1) work created by an employee within the scope of their employment; and
(2) works specifically commissioned and governed by an explicit agreement stating the work is considered a work for hire.
Without a written agreement, there's a rebuttable presumption that the work is a jointly authored work. The legal implications of that are joint ownership of the copyright, regardless of how much the authors contributed to the work. Each author also has the non-exclusive right to license the work, subject to a duty to account to the other. The joint author presumption can be overridden through a contract. Without a clear agreement, however, decision-making conflicts may arise, hindering the sale or licensing of exclusive rights.
To establish joint authorship, the key requirement is the intention to merge individual contributions into an integrated whole. For this reason, it’s important to stress how the work is registered with the U.S. Copyright Office. This is because the facts stated in the copyright application, specifically, whether you list one name as the author, or check the “work for hire” box on the application, will be given the presumption of truth when searching for the creators’ intent. As for editors, while they may contribute copyrightable expression, book editors at publishing houses are generally not regarded as co-authors.
The Pen (Contract) Is Mightier Than the Sword (Lawsuit)
To ensure you own the copyright you must have a written agreement that includes the phrase "the work shall be considered a work made for hire.” Because the work for hire doctrine applies to a narrow group of works, and not all courts recognize work for hire agreements signed after a work is created, to ensure legal validity, it's recommended to include a backup copyright assignment in all writer for hire agreements.
It's also important to lay out what the writer is allowed to disclose and the scope of the assignment. Will the book be a confessional, or the writer's job to put the best face on the subject 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 typically structured as progress payments linked to satisfactory and timely delivery. The inclusion of royalties alongside the fee is subject to negotiation. Generally, a portion of the fee is paid upon signing, necessitating the establishment of milestones to trigger further payments.
If the book is sold to a traditional publisher on the basis of a proposal, additional payments to the writer (and subject) will be tied to the publisher's payout of the advance. Typically, advance payments are paid in anywhere from two to four installments, i.e., (i) when you sign the contract, (ii) upon delivery and acceptance of the manuscript by the publishing house, (iii) when the book is published, and (iv) sometimes, a fourth and final payout when the paperback edition of the hardcover is published.
A ghostwriter agreement should cover the financial implications if one party withdraws from the project prematurely. If the subject decides to back out (provided both writer and subject are parties to the publishing agreement), specifying in the agreement that the writer isn't obligated to repay their portion of the advance can help alleviate the impact of a failed collaboration.
From a ghostwriter's perspective, it's important to have the subject promise that they will provide access to pertinent documents (e.g., diaries or memorabilia, or business papers), and use their best efforts to provide access to the subject's inner circle.
Whether you are the subject of the book, or the writer, it's reassuring to be named as an additional insured on a publisher's media perils policy. While most major publishers carry media perils insurance, many smaller publishers do not. Bear in mind that the additional insured's coverage is subject to the policy's deductibles and limits.
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 the writer from using that information against the subject for their personal gain.
Below is a sample confidentiality clause from an unsigned collaboration agreement between Fay Vincent Jr. (the former commissioner of baseball) and writer David Kaplan for Vincent's never-published memoir. According to Kaplan, "Vincent sat for interviews, told stories, and made a few editing changes" to the manuscript. At some point, the former baseball commissioner got cold feet and terminated his $300,000 publishing contract with Little Brown & Company - of which Kaplan was to receive a 40% share. Kaplan then sued Vincent for control of the manuscript. It did not end well for the writer. The unsigned collaboration agreement was deemed unenforceable, and the court refused to decide the joint authorship issue on a motion for summary judgment.
"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 ...."A well-drafted agreement might 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."
What You Need to Know to Avoid Being Sued for Defamation & Invasion of Privacy
In the United States, while the truth is a complete defense, accuracy does not necessarily trump a person’s right to privacy, or a promise not to reveal certain information. Therefore, both parties should take steps to ensure the factual accuracy of the manuscript. If you are a professional writer, the subject should be required to read and fact-check the manuscript to ensure accuracy. Since verifiable truth is a complete defense to a defamation claim, the ghostwriting agreement should require the parties to retain copies of all recorded interviews, transcripts, books, notes, letters, and other research materials used to prepare the book. See, §9.12.1, The Copyright Permission and Libel Handbook by Lloyd J. Jassin & Stephen C. Schechter (John Wiley & Sons).
It's important to note that under U.S. libel law, the dead cannot sue for libel. While the publication of truthful information is generally considered a full defense to libel, private individuals can sue for the publication of highly offensive or embarrassing truths. So, if your book goes too far and reveals intimate areas of a person’s life - e.g., sexual behavior, family life, medical procedures, mental (in)capacity – you may be inviting a right of privacy claim. Are there defenses? The First Amendment may shield the disclosure of private facts if there is a legitimate public interest served by the disclosure.
The right of publicity involves the unauthorized use of a person’s name, image, or likeness to sell or advertise products, merchandise, goods, or services. It is related to the right to privacy. Fortunately for memoirists, due to free speech considerations, courts historically construe publicity rights narrowly.
If you feel uncomfortable with the legal minefield of libel, right of privacy, and right of publicity law, consult a publishing attorney. A publishing attorney can evaluate or vet your manuscript and suggest ways to reduce the risks of writing about real people and actual events.
ABOUT LLOYD J. JASSIN
Mr. Jassin possesses a unique set of professional credentials. In addition to being a nationally recognized book publishing attorney, he was the director of publicity for a division of Simon & Schuster. He helps authors, agents, and publishers avoid contractual traps and negotiate win-win deals. He will let you know if a contract is viable and what it will take to make it signable. He's available to answer questions about book contracts, film options, copyright, merchandise licensing, publicity, and privacy rights, 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, he can help you avoid trademark infringement by doing a trademark clearance search and registering your mark. After law school, he worked for Viacom Enterprises, the world's largest distributor of feature films and off-network television programming. Before founding his firm, he was a trademark associate at Cowan, Liebowitz & Latman, an internationally respected intellectual property boutique. He's the co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons). He's been quoted in Publishers Weekly, The New York Times, Forbes, Fortune, and other publications, and taken the stage at BookExpo and spoken at Book Industry Study Group events. He's a former adjunct professor at the NYU Center for Publishing. Mr. Jassin graduated from Benjamin N. Cardozo School of Law and is admitted to practice in New York and New Jersey. Location: 1501 Broadway, 12th FL, New York, NY 10036, 212.354.4444. Email: jassin@copylaw.com.
