“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, their creativity loosened over libations, have developed an intriguing idea for a mystery series.
Whatever the reason behind a joint writing venture, the creative collaboration that emerges 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 expectations regarding control over the work and rights thereto are mutually understood and legally binding.
Just like working out the details in a publishing agreement instead of leaving the project to chance, it makes equal sense to work out the details in a collaboration. 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. At the end of this article is an example agreement. Use it only for illustration, not as a definitive agreement. Each creative collaboration is unique and requires different considerations to make the project successful.
1. How is the work divided?
As with any marriage, the division of the work is rarely equal all the time. The same is true with joint creative ventures. Start by creating a list of the work to be completed and then assign projects.
Be clear about the deadlines for completion of the projects. 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. You will want some language that sets forth what happens if one collaborator does not finish their projects or perform as expected. Usually, one author will continue with the project and require the other to compensate her appropriately or make changes in credit as needed.
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, I want to emphasize 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 the 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?
There is no way to 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 are 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. You know egos. So figure out in advance if there is a chip on someone’s shoulder. Things to consider: what names appear on the title page, and in what form and order? Alphabetical listings usually work best but sometimes levels of experience demand otherwise. Or possibly, the level of contribution of each contributor will help decide attribution issues.
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 bears responsibility and the associated costs of 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 and arbitration clauses
Decide how the parties will resolve disputes. No matter how you think the project will unfold, often disagreements happen. But this does not mean the project must end. If you decide ahead of time how to handle disputes, the project has a better chance of success. That said, you still should note that if the collaborators find it impossible to continue the project together, how the project will continue, if at all.
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 upfront, it can mean the difference between a happy marriage and a miserable one.
Example Collaboration agreement
The following Collaboration Agreement, (hereinafter “Agreement”), is entered into on [add date], between [Writer A] (hereinafter “Writer A”], located at [add Writer A’s address] and [Writer B], (hereinafter “Writer B”), located at [add Writer B’s address], also referred to collectively as “Co-Writers.”
The Co-Writers wish to collaborate on [add description of the project, along with a tentative title] (hereinafter the “Work”), and, through this Agreement, wish to establish their rights and obligations in and to the Work.
In consideration of the foregoing, the Co-Writers agree as follows:
1. Ownership, Copyrights, Trademarks, Proprietary Rights. The Co-Writers shall collaborate in the writing of the Work and it is their intention that their respective contributions shall be merged into a joint work with a jointly owned copyright in both their names unless provided to the contrary here: [if there is a different breakdown in percent ownership add the percentages]. It is further agreed that trademarks, rights in characters, titles, and similar ongoing rights from the Work shall be jointly owned by both Co-Writers [or co-owned based on percentages].
a) Although the Work is jointly owned [or co-owned based on percentages], Co-Writers may not separately agree (unless otherwise specified in this Agreement) to sell or license the Work to a third party without consent from both Writer A and Writer B.
b) Neither Writer A or Writer B shall sell, or otherwise voluntarily dispose of the Work, or his share therein, without the written consent of the other, which consent shall not be unreasonably withheld.
2. Responsibilities. The Co-Writers will [outline how the process for the collaboration, who has responsibility for what (like outlines, writing sections, revising, materials), and any deadlines the Co-Writers must meet, and if a mutual satisfaction is required before the Work is deemed final].
3. Deadline. The Work will be completed by [add deadline]. The deadline can be extended, provided the Co-Writers agree to the extension in an amendment in writing.
4. Breach. If, prior to the completion of the Work, one of the Co-Writers ceases to contribute to the Work for more than [X] days, or withdraws from the collaboration, or becomes incapacitated and unable to finish completion, such action will be a material breach of the Co-Writer’s obligations, and the remaining Co-Writer may terminate this Agreement, effective with the giving of written notice of termination, and the breach is not remedied within 30 days of receipt of written notice of the breach requesting its remedy. Upon termination, the remaining Co-Writer shall have the right to complete the Work alone or in conjunction with another collaborator or collaborators they choose. In such event,
a) the percentage of ownership in the Work shall be revised to reflect the percentage of the overall work completed by Co-Writers, and the Agreement amended accordingly, in writing, with mutual consent, which will not be unreasonably withheld, and;
b) the remaining Co-Writer will have the right to unilaterally enter into an agreement to sell or license the Work.
5. Agent. Co-Writers acknowledge and agree that [name of Agent if Co-Writers have an agent, if no agent then delete this section] shall be the exclusive agent or representation of the Co-Writers for the purpose of sale or other disposition of the Work or any rights therein, until such agent or representation is terminated by the Co-Writers, or ceases to represent the Work for any reason. In the absence of an agent or other representation, all said payments are to be made directly to the Co-Writers in the percentages stated in this Agreement.
6. Credit. Any contract for the sale, license or any other disposition of the Work, where the Work has been completed by the Co-Writers in accordance herewith, shall require attribution and credit to Writer A and Writer B in the following manner: [add how each Writer wants author attribution].
7. Income and Expenses. It is understood and agreed that for the purposes of this Agreement the Co-Writers shall share the proceeds from the sale, license, or any other dispositions of the Work and related rights. All money, advances, proceeds, and other considerations or other things of value derived from the sale, license or disposition of the Work shall be collected and applied as follows:
a) Income shall be received by Writer A, who, for purposes of convenience and expediency, is hereby designated primary representative of the Work, and shall be the primary spokesperson and contact point in matters regarding the Work.
b) Mutually-agreed expenses (including publication costs, legal fees, administrative fees, and commissions) shall be deducted from the gross receipts;
c) All remaining monies shall be apportioned between Writer A and Writer B as follows — [note the percentage split for Writer A and Writer B]
Writer A and Percent ________________________________: ____ %
Writer B and Percent ________________________________: ____ %
8. Sequel and Derivative Works. This Agreement is for a one-time collaboration only and does not cover any sequels to the work, which shall be subject to a new agreement. Said new agreement for any sequel shall take into account the shared copyright ownership of the material contained in the original Work. The Co-Writers will share ownership jointly to any sequel or derivative works based on concepts or characters contained in the Work [or share ownership according to the percentage ownership reflected in this Agreement or subsequent amendments to the Agreement made in writing].
9. Independent Parties. It is expressly understood that Co-Writers do not intend to form a partnership company nor shall this Agreement be construed to constitute the creation of such a business entity.
10. Warranty, Representations, and Indemnities. The Co-Writers represent and warrant that they have the right to enter into this agreement, that the Work shall be entirely original, has not been previously published in any manner or medium, and will not infringe any copyright or other intellectual property right of any third party. The Co-Writers further represent and warrant that to the best of the Co-Writers’ knowledge the Work will not contain material that is consciously libelous or defamatory. Co-Writers agree to indemnify and hold the other harmless against any loss or damage arising out of a breach of any of the foregoing warranties and representations described in this clause.
11. Arbitration. If any disputes shall arise concerning the interpretation or application of this Agreement, or the rights or liabilities of the Co-Parties arising hereunder, such dispute shall be submitted to a mutually agreed arbitration in accordance with the laws of the State of [add State]. The determination of such arbitration as to all such matters shall be conclusive and binding upon the Co-Writers.
12. Infringement. In the event of an infringement of the Work, Co-Writers shall have the right to sue jointly or separately, and, after expenses of the litigation have been deducted, share in any recovery as follows: [add recovery splits for each Co-Writer].
13. Termination. Either Co-Writer may terminate this Agreement prior to completion of the Work, effective with the giving of written notice of termination, in the event that the other Co-Writer commits a material breach of its obligations, and the breach is not remedied within 30 days of receipt of written notice of the breach requesting its remedy. The failure of a Co-Writer to enforce any provision of this Agreement shall not constitute a waiver nor affect its right to enforce such and every other provision.
14. Communications. Each Co-Writer shall keep the other Co-Writer informed in a reasonable and timely manner in matters that require mutual decisions regarding the Work. Each Co-Writer shall respond to communications from the other Co-Writer regarding the Work and from others having an interest in the Work in a reasonable and timely manner so as not to harm or unreasonably delay the creation, sale, or other disposition of the Work.
15. Competitive Works. Co-Writers agree to restrict their future activities to avoid competition with the Work as stated herein: [list any future restrictions to avoid competitive works, or delete this clause if there are none].
16. Duration. The terms and conditions of this Agreement shall be in effect until the duration of the copyright, plus any renewals or extensions, and shall be binding and inure to the benefit of the executors, administrators, and successors of each Co-Writer. This Agreement may not be assigned by either Co-Writer without the prior written consent of the other.
17. Miscellaneous. This Agreement constitutes the entire understanding between the Co-Writers. The terms and conditions of this Agreement may be modified only by written amendment signed by both Co-Writers. This Agreement shall be governed by the law of the State of [add State, same one as the arbitration State].
[Writer A Signature]
[Writer A Name Printed]
[Writer B Signature]
[Writer B Name Printed]
Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.