You, Me, Us: Legal Issues Arising from Writing Collaborations
[Originally published in Romance Writers Report, December 2017]
Publishing is full of collaboration. Authors collaborate with editors, cover designers, other authors, and a large range of other professionals. Those collaborations give rise to a number of legal rights and obligations.
(And now, a brief disclaimer: This article is not legal advice for your specific circumstances, and it does not advise you about personal legal strategies; you’ll have to hire a lawyer for that. This article also only covers United States law. Copyright laws vary by country, and the information contained herein may not apply to writers in other countries.)
The Simple Case: Collective Works
In legal terms, the simplest collaboration is a “collective work.” The Copyright Act of 1976 defines a collective work as: “a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.”
Collective works include boxed sets or bundles, where each author contributes one or more works in its entirety. In those cases, the author retains her right in her work, and the creator of the collective work obtains a right solely in the collective work—the specific sequence of novels, for example.
If an infringer builds a new boxed set but rearranges the order of the books, then the creator of the boxed set has no legal claim. (Each individual author, though, would be able to claim copyright protection for her individual contribution.)
The Meat of the Matter: Joint Works
More interesting legal issues arise with a “joint work,” defined by the Copyright Act as: “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.”
An author’s merely working with another person does not necessarily create a joint work. For example, a writer completes a manuscript and submits it to an editor, who makes some suggestions that are accepted (and then implemented) or rejected by the writer. The writer and the editor have not created a joint work; rather, the writer is the “author” under the copyright laws.
Similarly, a writer completes a book and presents it to a cover designer (either directly, or through a traditional publisher), who creates a cover that reflects elements of the book. The cover designer is not an “author” under the copyright laws; that role belongs solely to the writer.
The default rule is that the “alpha creator” has sole ownership of the copyright in a work, absent explicit intentto the contrary. Therefore, editors, cover designers, copyeditors, marketing specialists who write back-of-the-book blurbs, formatters who create print and electronic files of books, and other “beta creators” are unlikely to acquire joint ownership—unless a written agreement confirms an intent to the contrary.
The following examples clarify true joint works:
- Intending to create a joint work, Adrian Author and Robin Writer develop a book together, creating a story bible that describes the characters, the settings, and the plot. Adrian writes all of the chapters narrated by Character X. Robin writes all the chapters narrated by Character Y.
- Intending to create a joint work, Adrian Author develops a fantasy world, defining the workings of magic (including writing various spells), describing characters (including appearances and back stories), developing maps, and plotting a series of adventures. Robin writes the entire book, based on Adrian’s work.
- Intending to create a joint work, Adrian Author draws the artwork for a graphic novel. Robin Writer writes the script.
- Intending to create a joint work, Adrian Author develops and drafts a novel. Robin accepts the draft from Adrian and works through the novel, modifying individual sentences, changing character details, and updating plot, writing out each change in its entirety.
The key here is intent: In each of the above cases, Adrian and Rob intend for their work to result in a single, coherent work.
Unless restricted by a contract (see below), each author of a joint work can exploit her copyright completely. In the examples above, Adrian can negotiate a movie deal. Rob can sell foreign rights. Either can license the copyright to a third party. Either can assign the copyright to a third party, but only the first assignment is valid, because after the assignment is made, neither Adrian nor Rob retains rights in the original work. (A license grants limited rights to use a work; an assignment transfers all rights to that work.)
Joint authors’ rights come with a corresponding obligation: Each author must account for the proceeds, sharing equally with the other. (We’ve discussed joint authorship as if it’s limited to two authors, but there may be more than two. In that case, all authors share finances equally.)
Key Contract Terms
Obviously, joint authors need to trust each other—not just with the sensitive business of creating together, but with finances as well. Therefore, it’s advisable for joint authors to have a written contract, setting forth their rights and responsibilities. (The Copyright Act does not require such a contract; authors can be deemed joint authors without a single written document.)
As a rule of thumb, people should approach drafting a contract as if the document is going to be litigated by heirs who are bitter enemies. Language should be reviewed so that every arrangement is explicit and no interpretation is necessary to understand the parties’ rights and responsibilities. No assumptions should be made based on current goodwill and long-term cooperation.
A good joint author contract will include:
- Explanations of what each author brings to the arrangement (skills, specific writing, general background, etc.),
- Designations of responsibilities under the arrangement (drafting, revising, editing, illustrating, etc.),
- Obligations that each author can make on behalf of the other, possibly including licensing the work or assigning the work,
- Obligations that each author may never make on behalf of the other, possibly including licensing the work or assigning the work,
- Specifications about what each author may write outside of the joint work, including individual works in the same world or using the characters of the joint work,
- Specifications about what will happen if the authors cannot decide how to use the joint work (often, following the ruling of a panel of three mediators, with each author appointing one mediator and agreeing on a third),
- Specifications about what will happen when each author dies (including whether the rights in the work pass to the surviving author or to the dead author’s heirs),
- Buyout provisions between the authors, and
- A specific division of all income, especially if the authors don’t intend for it to be divided equally.
A joint author contract can go on for several pages. But it can also be a relatively brief document, written in the form of a letter that memorializes an existing or a new arrangement. It’s advisable to have a lawyer look over the agreement, but it’s not strictly necessary to do so.
The Big Gun: Incorporation
Some lawyers advise their joint author clients to create a corporation for the purpose of creating joint works. Corporate documents (which, unlike a contract, should always be drafted by a lawyer) define the purpose of a corporation, including limitations on a corporation’s power to act.
The law of corporations varies substantially from jurisdiction to jurisdiction. Moreover, there are many different types of corporations—some states allow “corporate-light” operations, without the full requirements for shareholders’ meetings, director and office liability insurance, etc.
Common Situations That Typically Are Not Joint Authorship
As discussed at the beginning of this article, some publishing arrangements—such as editing and cover design — are typically not considered to be joint authorship. In recent years, though, some traditional publishers have attempted to expand the notion of joint authorship.
A few years back, for example, Harlequin rattled the nerves of some authors who requested the reversion of novels that had gone out of print: Harlequin claimed a copyright in its editors’ contributions to the novels. While it would revert rights on those novels, Harlequin maintained that the authors could not re-publish the books in the form that had been previously published; rather, they could only publish their initial drafts (without any editorial input.) To my knowledge, none of those cases were litigated; rather, authors challenged Harlequin’s assertions, and the publisher backed down.
Similarly, most ghostwriting arrangements are not joint authorship. Typically, a ghostwriter is hired by an author to write a book, based on the author’s instruction. (“Author,” here, is a term of art. The “author” might, for example, be a celebrity who is unable to string together a single coherent sentence.) The author and the ghostwriter intend for the book to be presented to the world as being written by the author. The book is a classic work-made-for-hire under the Copyright Act.
Authors and ghostwriters may choose to create a different relationship. If they intend to work together, they may create a joint work. Of course, such an intent should be documented in a contract. That contract will generally state the specific language that will appear on the cover of the book — for example, My Book, by Arthur Author with Gertrude Ghost.
Finally, some publishing ventures are built on shared worlds, where the books may or may not be joint works. Successful shared worlds include George R.R. Martin’s Wild Cards series, Robert Asprin’s Thieves World series, and dozens of Kindle Worlds, published in Amazon’s program. Each of these shared worlds comes with a contract, delineating authors’ rights.
Kindle Worlds, in particular, have a variety of different contracts — some require authors to forfeit all exclusive rights to the characters in their Kindle World work (even if those characters were created by the author for earlier, independent books) and some allow authors to transplant characters freely. The key to successful shared world works is defining and understanding the contractual relationships before committing hours, days, weeks, or months to writing in the world.
Collaboration allows authors to reach far beyond the boundaries of their individual books, finding new readers and creating a broad range of works. Following simple legal protocols allows authors to experiment in new forms with confidence.