• Till Death Do Us Part: Joint Authorship Agreements for Co-Authors and Co-Creators
  • December 13, 2012 | Author: Kaiser Wahab
  • Law Firm: Wahab & Medenica LLC - New York Office
  • The rise of collaboration technologies has led to more authors collaborating on screenplays, articles, books, and various other creative works.  This free exchange of ideas can lead to timely, efficient, and lower-cost works, but also inadvertently lends itself to copyright infringement and legal battles over ownership rights.  Hence, collaboration agreements are useful contracts which can delineate each author’s copyright, right to license the work, and legal remedies, to prevent conflicts from arising.

    No Contract Means Being at the Mercy of the Copyright Act and Each Other

    An essential bond of trust between collaborating authors can not be understated.  Regardless of friendships,  written agreements should always be drawn up as a precaution against confusion regarding undefined rights to the work.  In fact, most publishers make such agreements a requirement for teams of authors, before accepting the project.  In the absence of a collaboration agreement, the manuscript (or other work such as a film) will by default fall under the category of a “joint work”.  And under the Copyright Act a joint work is defined very ambiguously as 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” (Section 101 of the 1976 Copyright Act.)

    This means the authors will co-own the copyright and be granted an equal share of the work’s royalties.  Also, in the absence of a written contract, the authors will be left to follow the default rules of the Copyright Act, where each would be able to license the nonexclusive rights to the work to a third party, as long as he or she accounts for the profits to the other. This could result in complications when there are multiple parties requesting exclusive rights or several different offers for the work and no agreement has been created.  For example, a disapproving co-author would be able to block the other collaborator from licensing or assigning exclusive rights of the work to a third party.  Equally as disastrous an event could occur if the subject of an autobiographical work completely cancels the project, commencing an ownership rights lawsuit.

    Step 1: Get it in Writing-Step 2: Get it in Writing

    A written contract between collaborating authors does not have to be complicated or even follow the default rules of the 1976 Copyright Act.  The authors can agree to their own terms such as granting the commissioning party final approval over the whole project or to provisions that would give one writer less than his or her 50% percent share under the Copyright Act.  Although these examples would be legally binding, this does not mean that the parties should not retain the assistance of a lawyer when forming the agreement.  An attorney who understands the publishing business would be recommended where there is a disproportionate division of labor between the authors of a collaborative or ghostwritten work. In addition, a lawyer can help the clients identify and achieve their goals regarding royalties, copyrights, proceeds, and other financial and business aspects of producing a literary work.

    What Makes a Good Collaboration Agreement?

    There are several fundamental points that a well drafted collaboration agreement should discuss, such as the responsibilities of each author, timelines for delivering work, sharing expenses and receipts, payment advances, authorship credit, joint ownership rights, compensation, and approval of any book deals, revisions or of the publishing contract in general.  Other topics which might also be included would be warranties, indemnity clauses, non-disclosure agreements and rights to a sequel or beyond.

    First, a collaboration agreement should outline the nature of what is to be delivered from each writer. This description of the work to be rendered and the role of the author in creating it should be as specific as possible, as ambiguity is disadvantageous to any contract.  A production date should indicate when the requested material is to be completed, as well. Deadlines should be reasonable, but strictly observed since a missed deadline can translate to the cancellation of a book contract, forcing the writer to have to repay his or her advance.

    Negotiation Rights

    Usually when an author hires a writer to assist him or her with a non-fiction work, the author submits a book proposal, or a comprehensive summary of the book’s concept.  Book proposals also contain information on the author’s credentials and marketing plans to entice publishers. Often the book proposal will reflect the idea that the majority of work on the collaborative piece will not take place until after there are offers from publishers.  If there is a large discrepancy between the authors’ experience in the publishing business, the writer who is most knowledgeable can request exclusive rights to negotiate with the publishers and or agents.  The other author will then claim the right to final approval. Other considerations to spell out in the book proposal or in a written contract could be which author is to acquire and sign book deals, which is in charge of appointing a literary agent or specific attorney, and which has the approval rights to revisions and corrections.

    Celebrity Clauses

    Special issues need to be addressed when a writer is collaborating with a celebrity or public figure such as the writer’s accessibility to materials and the subject himself.  The famous person must make a good faith effort to permit access of the author to interviews or to other people who have relevant information that can be included in the work.  At all times the author must remember his or her objective, as in how he or she will portray the celebrity i.e. in a positive, glowing light, or in a no holds barred confessional style, within the limits of reason and not extending into hyperbole. A common problem the writer should be aware of in this situation is that celebrities tend to contract for progress payments, meaning if the subject is not pleased with the results of each section of the work, it is possible that the writer will not receive any money besides his or her initial payment or advance.

    Payment Terms

    Payment is inevitably another major topic that is to be incorporated into the collaboration agreement.  One of the writers may be unemployed aside from the project, establishing a need for money during the creation period.  The agreement can adjust his or her advance and he or she can elect to forego a certain amount of royalties in return.  Another option would be if the money could be recouped from future proceeds while additional money would be shared according to the rest of the agreement.  Splitting the expenses early on will affect the writers’ profit division and must be set up accordingly in the agreement.  Although most commissioned writers receive payment in installments, a work-for-hire author is not limited to relinquishing his or her prospective royalties in favor of a one-time fee.  He or she can negotiate for a more modest fee up-front and still receive a portion of royalties for the work.  This investment in the piece can serve as insurance in the event book sales are through the roof.

    Credit Requirements

    A great feature of a collaboration agreement is that it can clearly designate who is to take credit for individual sections of a work or the work as a whole. With an estimated up to 70 percent of all nonfiction books ghostwritten, a collaborator must acknowledge if and how his contributions are to be presented.  Sometimes an expert on a particular subject or the subject of a non-fiction work enlists the help of a gifted writer to complete his or her book, possibly causing a credit issue. A written agreement drafted by an attorney can fine-tune smaller details like the order of the names on the cover and title pages, and their size and prominence.  If one author is well-renown, his or her name may take precedence over the other writer.  When the writers’ degree of eminence is either unclear or the same, alphabetical order can be used.  Terms used to signify the author’s credit include “by Me and You”, “by Me and You” or “as told to Me”, among others. If a work is ghostwritten, the ghostwriter must understand that his or her name will be left off the work entirely and the subject will receive sole authorship credit. Contrary to other fields of art, there is no stigma against a celebrity or political figure hiring a writer to create a book, in the publishing world.

    Defining Contributor Goals

    Next, the collaboration agreement should discuss the main objective of copyright ownership of each writer.  Initially, the writers must decide if they are to jointly own the work.  If this is not their goal, then they must state this in the agreement. A sufficient integration or entirety clause, verifying that this is the only exclusive agreement between the parties, will alleviate any inconsistent demands outside of the agreement.

    Death of a Contributor

    Because copyrights affect more than just their owners, certain provisions may be necessary to include in the event one of the collaborator dies either during or after the publication of the work.  Upon the death of a collaborator, current copyright rules dictate that the deceased’s beneficiary or statutory successor would gain possession of the author’s copyright, but the agreement can arrange for the surviving writer to assume editorial responsibilities if the book is still in production, or has to be updated at any point.

    Warranties and Indemnities

    Like any business contract, collaboration agreements should contain warranties and appropriate corresponding indemnity clauses. Joint writers especially make use of warranties as they are require to state that their work does not violate any existing copyrights or any person’s privacy rights, and that the content of their non-fiction work is accurate.  A publisher or co-author relies on these premises and an indemnity clause suggests that if the other author makes a false claim, he or she will repay the damage incurred because of it, thus encouraging truthfulness in the writing community.  Indemnity clauses should be reciprocal among the joint authors.

    Miscellany

    Lastly, collaboration agreements can serve as a manual on tackling ownership rights to prequels and sequels, securing non-disclosure, non-compete and trademark rights agreements, relating how expenses are to be divided, providing recourse if the work is rejected and how to reconstruct the financial plan accordingly, disseminating rights in the case of the authors’ death, the rights of contributors who not joint authors under the Copyright Act, and rights to merchandise products.

    Conclusions

    The collaboration of writers due to faster and easier technology has proved beneficial for best-selling books as well as smaller, non-commercial works. No matter the size of the project, authors working in tandem are wise to protect their copyright, credit, and business interests by offering particular instructions on these matters in a collaboration agreement.  When a collaboration agreement is executed before work is begun on a joint project, unnecessary litigation can be avoided, marking plans can be laid out in advance, and the beginnings of a prosperous endeavor may take place for the authors concerned.