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The Art & the Deal of Collaboration & Ghostwriter Agreements

By Lloyd J. Jassin

“One does not have to be a great writer to be an author – you need to know a great writer.”
-Rick Frishman, book publicity guru

Have you ever wondered how busy celebrities, titans of industry, politicians, physicians and other experts find the time to write and publish books? Despite the smokescreen of many authors’ denials, 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.” 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) develop an unadorned idea into a book proposal or finished manuscript. But what about the hazards of working jointly? In addition to the ethical dilemma of credit built into collaborative writing, there are other concerns, including control over the final manuscript, compensation, confidentiality, and ownership of the jointly written work.

While trust is an important element of any relationship, without a written agreement, you are ill equipped to deal with conflicts. Contracts define rights and remedies, and thus help avoid misunderstandings. If avoiding conflict is not sufficient reason for having a written collaboration agreement, take note that many publishers contractually require – as a condition of working with the author team – that joint authors have a formal written agreement between them.

Collaboration Presumes Equal Control and Ownership

The essence of the collaboration agreement is copyright ownership. In the absence of a written agreement, when two people collaborate, there is a good chance the ensuing work will be considered a joint work The formal legal definition of a "joint work" is "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" (1976 Copyright Act, Section 101).

Many hiring parties are caught unaware of the consequences of working without a written agreement. When a joint work is created, each collaborator is presumed to co-own the copyright, and share equally in royalties. Further, under the default rules of the Copyright Act – which can be altered by a written agreement -- each collaborator can license the nonexclusive rights to the work to a third party, provided they fairly account for the profits to the other. Problems commonly arise when there are multiple offers for the work or requests for exclusive rights and no agreement exists between the collaborators. In effect, a recalcitrant collaborator can prevent the other collaborator from licensing or assigning exclusive rights in the work to a third party. Another disaster scenario is unilateral termination of the project by the subject of an autobiographical work, as was the case with the failed collaboration between Fay Vincent, the former commissioner of baseball, and David Kaplan. After 90% of Vincent’s memoir was completed, Vincent withdrew the project from his publisher, and thwarted Kaplan’s efforts to publish the book under Kaplan’s own name. See, Kaplan v. Vincent, 937 F. Supp. 307 (SDNY 1996). If the parties had a well-written agreement – as opposed to oral understanding -- legal entanglements, likely, would have been avoided.

Identify Special Issues

You are not bound by the default rules of the Copyright Act. You can write your own rules. That is where real world document drafting comes into play. For example, it is perfectly legal for a commissioning party to receive final approval over all aspects of the project, and for the scribe or writer to receive less than 50% of the profits otherwise dictated by the Copyright Act.

Since ghostwriter and collaboration agreements do not involve an equal division of work, there must be mutual respect and objectives. If you are not familiar with the intricacies of the publishing industry, or wish to insulate your creative or personal relationship from the business aspects of your literary partnership, engage a lawyer with an understanding of the publishing industry. Make certain that attorney understands your goals. Is it more important to have a book that establishes you as an expert, than an additional 10% in royalty points? Lawyers are often surprised to find out what their client’s real goals are.

Writing the Right Contract

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. Try to be as specific as possible about what is to be delivered, and the time for delivery. In the case of a ghost written work, the writer will write the book proposal, which is a detailed overview of the book’s concept, 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. If a book proposal is to precede delivery of a complete manuscript, the contract might read as follows:

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, minimum amount, for initial publication rights to the book, and other terms usual and customary in the publishing industry.

If you are a professional writer working with a celebrity or other public figure, there are additional critical issues to consider. These include access to pertinent documents, access to the subject, and the subject’s good faith effort to secure the writer’s access to interviews with other individuals as may be needed to prepare the proposal or complete the book. Determine your role. If you are an autobiographer, are you delivering a “warts and all” portrait? Or, is your role to put the best face on your subject’s life story, without resorting to blatant deception? Since progress payments are the norm, if the subject is unhappy, you may not see anything beyond your initial payment or advance.

A professional writer working on an “as told to” book may want to try for a provision that says that if the subject gets cold feet and pulls out, the writer does not have to repay his portion of the advance. A related issue is who has the right to exploit the material already written if the project is canceled or the collaborators decide not to work together. If the authors’ contributions are easily divisible (e.g., John wrote chapters 1 -9; Albert wrote chapters 10 - 14), the simple solution is for each writer to get exclusive custody of their respective materials. Things get more complicated if the authors’ contributions are not readily divisible, or a writer is let go before the parties have signed with a publisher, or someone is hired to finish what the departing collaborator started. Depending upon the facts, various options exist, including a buy-out of materials already prepared (e.g., the book proposal), and perhaps tied to an agreement not to compete with the work in progress. If the authors’ contributions have merged (i.e., there’s no practical way to separate out and revert rights), their collaboration agreement could help them resolve the problem. One way to deal with this scenario is to state in the collaboration agreement that “neither party may use the Work, or any part thereof, without the prior written approval of the other.” In the competitive world of publishing, allowing each joint author the right to use the merged portions freely is not an realistic option, since publishers seek “exclusive” rights to publish.

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 may agree that person receives a larger split of the advance. In exchange, the recipient may forego 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.

Keep in mind, even those who do not qualify as joint authors for copyright purposes (for example, individuals who made an important creative or financial contribution to the finished work) may still share in the profits and control of a work through an appropriate contractual arrangement. For example, ghostwriters and other writers-for-hire, usually get paid in installments – after portions of the manuscript are received and approved. However, a ghostwriter or 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 herself 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.

Credit. Billing credits also depend on the bargaining power of the parties. Issues include size and prominence of names, as well as order of names on the title page. If there's brand equity in your collaborator’s name, it may make sense for that person's name to appear first. Where the division between the authors' contributions is not clear-cut, alphabetical order is a sound approach. Author credit designators include the terms "by Me and You" or "by Me with You" or "as told to Me." By definition, if the book is ghost written, sole authorship credit for the work will be in the subject’s name only. In this case, the writer-for-hire must make peace with the fact the subject will get more credit than he or she deserves. Under the heading “good fences make good neighbors,” the subject will insist that the ghostwriter agree to keep certain matters confidential. However, most ghostwriters receive higher fees and larger advances, because their names don’t appear on the book. So, they know what they are getting into. Whereas Ashlee Simpson lip-synching (badly) on SNL is considered a deceitful practice – outside the world of academia – getting extra help from a ghost is not generally frowned upon. Unlike James Fry, author of A Little Million Pieces, who called his novel a work of nonfiction, there is no breach of public trust when a celebrity expert or politician hires a professional writer to write a book. Perhaps, the reading public understands that the credited author’s expertise is the engine that drives the work.

Copyright. If a joint work is intended, state that clearly in the collaboration agreement. Under the default copyright rules, if a collaborator dies, his statutory successors step into his shoes. Therefore, the agreement might specify that the surviving author - subject to a duty to account to the deceased collaborator’s family – take over editorial responsibilities. If the book is likely to be revised, the agreement should also contain a provision that allows the surviving partner to reduce the compensation paid to the estate if substantial revisions are made to the text, or it becomes necessary to hire outside writers to keep the work up to date.

Control and Approval. Control of business and editorial matters are key issues. In cases where there are more than two authors, such as textbook publishing, and approval or consent is required, unanimity may be required for certain decisions (e.g., approval of the initial publishing contract). Other circumstances may require a majority vote. Additionally, the parties may give approval rights over certain decisions (e.g., selection of a literary agent or publishing attorney) to one party if that person has superior knowledge and experience in such matters. 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:

For the writer, referencing the approved proposal in the collaboration agreement, and requiring the subject to provide reasons for any dissatisfaction, establishes certain objective criteria by which the writer’s contribution will be judged. After re-submission of the materials, if the text is still unsatisfactory, the termination provisions of the contract could be invoked.

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 the representations or warranties you make 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 honest. They should be reciprocal. If any liability arises because of a breach of either parties’ representations and warranties, the non-breaching party should be reimbursed for costs and expenses (including reasonable attorney fees) for damages done to others.

Miscellaneous. Other issues that should be addressed up front include prequel and sequel rights, nondisclosure and non-compete clauses, how expenses will be borne, repayment of the advance if the manuscript is rejected, death and disability, and how to value a withdrawing author’s contribution. 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)).

With the advent of new printing technologies, collaborative works – whether ghosted or written in true partnership – are practiced with greater frequency. Although the size of your publishing venture may seem modest by commercial publishing standards, 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 issues or the eventuality of a dispute, or even the death of a coauthor, it is always easier and less expensive to deal with these issues up front, rather than after a dispute arises.

© 2007. Lloyd J. Jassin. All Rights Reserved.

Lloyd Jassin is a book publishing and entertainment attorney. Before law school, he was Director of Publicity for the Simon & Schuster Reference Group. His practice includes drafting and negotiating publishing and entertainment industry contracts, copyright counseling, trademark registration, prosecution and litigation. He is the coauthor of The Copyright Permission and Libel Handbook (John Wiley & Sons). He can be contracted at: The Actors’ Equity Bldg, 1560 Broadway, NYC, 10036, (tel.) 212-354-4442); (Email:jassin@copylaw.com), or visit: www.copylaw.com

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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