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:

Writer shall use best efforts to prepare a full book proposal, which will be used to sell the
Work to publishers (the "Proposal"). The proposal will be double-spaced, consisting of a
preface, introduction, and sample chapter. In consideration for preparing the Proposal,
Subject shall pay Writer the non-refundable sum of $X,XXX (the "Proposal Fee") due
upon execution of this Agreement. One Hundred (100) percent of the first $X,XXX
received by Writer under the Publishing Agreement (net of agency commissions and
expenses incurred in preparation of the Work), if any, shall be repaid by Writer to
Subject. Following execution of an Agreement for the initial publication of the Work,
pursuant to Paragraph 6 (the “Publishing Agreement”), Writer shall further research,
prepare, write and deliver the Work.

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:

Provided Subject has made herself available to Writer as set forth in Paragraph X, Writer
shall deliver a complete Proposal, satisfactory to Subject in content and form, on or before
__________. Subject shall have the right to approve the Proposal. Subject shall further
have the right to promptly review and comment on draft sections of the manuscript from
time to time to ensure that the Work substantially conforms to the approved Proposal, and
for purposes of ensuring the accuracy of those facts contained therein. Subject shall have
the right to approve the final text of the Work prior to the delivery date specified in the
Publishing Agreement, such approval not to be unreasonably withheld or withheld.
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.

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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), 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.