Wars have started over less, but when it comes to money everything changes, even between friends and family. Some writers are so captivated by the magic of writing, they fail to prepare themselves legally when entering into a partnership. They may feel that because their co-writer is their best friend or sibling that the messy legal stuff can be taken care of later. Unfortunately, later becomes that heap of garbage swept under the rug, to be dealt with at another time and yet nonetheless still stinks.
To discuss this matter, we asked veteran publishing attorney, Lloyd J. Jassin what writers should consider when entering into a partnership and when, if ever, it may be unnecessary to do so. Can a handshake deal ever suffice? Jassin discusses that and more in today’s edition of Ask a Lawyer.
Q: My best friend and I have the most amazing idea for a novel and we’ve decided to write it together. Should we have a contract? I mean, we’ve known each other since grade school and if so, what should be in it?
My advice is don’t marry your best friend, or write a novel with her if you wish to stay friends. A successful collaboration, like a marriage, takes a lot of hard work, and the emotional and financial strain can be enormous, especially if you have difficulty giving or taking criticism. But, enough with the relationship advice or Dear Abby’s estate may sue me.
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).
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 selling the novel to a publisher.
Protect yourself. Get everything in writing. The key issues are cash, control and author credit. Death, disability and what to do if your writing partner loses interest in the project are also biggies. Who gets custody of the work? It’s easier to decide these issues up front, during the romance state of the writing relationship. Of course, how collaborators split proceeds and make decisions, ultimately, depends on the writing partners’ bargaining power and sense of fairness. Try to be as specific as possible about what is to be delivered, and the time for delivery. Keep in mind, even those who do not qualify as joint authors for copyright purposes (for example, individuals who made an important, but not copyrightable — contribution to the finished work) may still believe they have a financial stake in the book. The size, prominence and order of names on the cover and title page, needs to be negotiated and agreed to in writing. If there is greater brand equity in one collaborator’s name, it may make sense for that person’s name to appear first. Where the issue is not clear-cut, alphabetical order is another sound approach. Who will be responsible for seeking out and approving book deals? Who has the authority to approve the final draft of the work or authorize revisions? Among other issues that should be addressed in a well-written collaboration agreement are how to handle prequel and sequel rights, nondisclosure and non-compete prohibitions, how expenses will be split, repayment of the advance if the manuscript is rejected, how to value a withdrawing, disabled or disinterested collaborator’s contribution, and even merchandising and trademark rights in the title and characters. Although collaborators might not feel comfortable discussing long-term financial issues, or even the death of a collaborator, it is always easier and less expensive to deal with these issues up front, rather than after a dispute arises.
Lloyd Jassin is a publishing and intellectual property attorney and a former book publishing executive. For more information about Lloyd Jassin visit www.copylaw.org or follow him on twitter at http://www.twitter.com/lloydjassin.
THE INFORMATION PROVIDED ABOVE IS OF A GENERAL NATURE AND IS NOT INTENDED AS LEGAL ADVICE. IF YOU HAVE A SPECIFIC LEGAL ISSUE OR QUESTION, SEEK THE SERVICES OF A COMPETENT ATTORNEY.