“I’ve got a really great story for you to write.”
Writers hear that line often, especially if they have reached some level of success as an author. It could be a celebrity who wants to publish a memoir but has not the time or inclination to write it. Or maybe it is an acquaintance with brilliant plots and subpar writing talent. Or maybe two authors, creativity loosened over libations, developed an intriguing idea for a mystery series.
Either way, the creative collaboration that emerges from those scenarios will be like a marriage – a long haul filled with trust, love, admiration, and conflict that either is a relatively joyous and rewarding adventure, or something that ends in a disastrous divorce.
I do not mean to squash budding creativity. Joint creative projects happen constantly. Just peruse the titles at your local bookstore or do a quick search on Amazon. In today’s publishing world, more and more books are the product of collaborations, whether ghostwritten, co-authored, or by an author writing someone else’s story.
If you are determined to enter into a creative collaboration, save yourself mountains of time and horrendous migraines by hiring a lawyer with publishing law experience to draft a collaboration agreement. It will define rights, processes, remedies, and variables that arise when two people decide to work jointly on a creative project. It will ensure writers expectations regarding control over the work and rights thereto are mutually understood and legally binding.
Setting responsibilities and obligations in the beginning allows creativity to flourish and the joint project in the end the best opportunity to succeed. A happy marriage. Or at least, that is the idea.
Here are thirteen lucky elements, questions, and variables to consider when entering into a creative collaboration.
1. How is the work divided?
Create a list of the work and assign projects.
Be clear about deadlines for completion. Be realistic and reasonable in your expectations of yourself and others, especially when setting those deadlines. My rule of thumb — estimate the time for the project, then double it.
Be comfortable knowing that any joint project requires healthy discussions and disagreements to reach a mutually agreeable decision.
Depending on the project and division of the work, there are plenty of ways to approach producing work product. Writers have their own writing process. Talk this out and find what works best for both.
2. Copyright Ownership
Under US Copyright law, the default copyright ownership for contributors to a joint work is co-ownership of the copyright, unless otherwise agreed upon by the contributors. That means, each collaborator can independently, without the consent or knowledge of the other contributor, license or assign away their rights in the work to others. Again, and I underscore this, unless otherwise agreed upon by the contributors. So it is important that the collaboration agreement define ownership rights in the copyright. Will only one contributor own the copyright? Will each own it jointly? Or will each only own the copyright to their separate contributions to the joint work?
These decisions will affect how you approach many of the other provisions in your collaboration agreement – like how the final product is exploited commercially, how the material created can be reused once the agreement is terminated, can the parties publish work that competes with the collaboration, and how to tackle sequels or related work.
3. Editorial Control
How will creative decisions be made during the project? Who can authorize revisions? Who has final approval over the material when submitted to a publisher? These are just a few of the questions you and your co-contributor should explore.
Part of the information about the collaborative work and the collaborators themselves will need to be kept confidential, especially if one party is a ghostwriter. Decide what information needs to remain strictly confidential and what information can be used to fulfill the intent of the contract.
As noted above, consider to what extent co-authors can publish work that competes with the collaboration and any relevant timetables (after publication of the collaboration? after termination of the project?). Be clear as to what defines a competing work.
6. Decision Making
The agreement should provide direction on how business decisions are made regarding marketing of the project, negotiating contracts, and signing licenses. Does one collaborator have the right to negotiate contracts while the other the right to veto decisions? Do both parties need to sign contracts with third parties? Who makes the decisions about marketing and signs those contracts. Who negotiates the agent contract? Who signs the publishing contract? Who is bound by the deadlines in the publishing contract? And who will handle sales and distribution agreements?
You will not think of all the questions, but if you develop a general plan on how to handle these business concerns, you will avoid a host of problems in the collaboration later on.
Two things that raise havoc in any relationship – income and expenses.
Decide how income is divided. Each person will have different financial concerns. Some might want a larger portion of the advance, but willing to forgo a larger percentage of the royalties. Maybe the income is split based on contribution. Or maybe one is paid a flat fee for their contribution in lieu of royalties.
Decide how income is handled. Deposited into a joint bank account? Split into separate accounts? A percentage withheld to pay bills?
Decide how expenses are to be authorized and paid. Set budgets and list specific expenses if known. Are expenses shared equally?
Who gets the credit? Come to an agreement ahead of time, instead of arguing over it later.
9. Future Work
Decide how to handle any future projects like a series, or a topic related to the original work.
10. Warranties and Indemnities
These contract provisions warrant a writer has not violated any laws or ethics in the creation of his portion of the work (plagiarism, defamation, invasion of privacy, etc.). Indemnities are promises of reimbursement should those warranties be false.
If you need more information on warranties and indemnities, see my earlier Sidebar Saturdays post.
Things to consider are how will the legal responsibilities be shared or divided? It will be important for each collaborator to make representations as to the work they contributed to the collaboration. If the collaborators find themselves subject to a lawsuit like copyright infringement or defamation, who bares responsibility and the associated costs of a defense?
11. Term and Termination
The term of the collaboration agreement can be as short as the parties like, or more likely, as long as the copyright term covering the joint work.
Other issues that might trigger termination: What if one contributor does not perform as expected? What if one contributor dies or is disabled during the collaboration? Does the survivor retain editorial and licensing control over the work? Who gets the deceased’s income? Is the income modified if the collaboration was not finished at the time of death?
12. Mediation/Arbitration Clauses
Decide how the parties will resolve disputes.
What are the collaborators’ rights when it comes to assigning their ownership interest in the joint work and income?
This is nowhere near an exhaustive list. But it is a start. Every collaboration has different needs and concerns, so construct your agreement accordingly. If both parties take care of a few housekeeping items up front, it can mean the difference between a happy marriage and a miserable one.
If you need more information on collaborative agreements, check out these books and other blog posts: The Writer’s Legal Companion (Bunnin and Beren), The Writer’s Legal Guide (Murray and Crawford), 21 Tips for Creating a Successful Writing Collaboration (Helen Sedwick), and Negotiating Collaboration Agreements (Lloyd Jassin).