By Howard Zaharoff
As a lawyer and a writer, I truly believe that the key to successful collaborative writing, from an equal co-authorship to a ghostwritten autobiography, is a good contract that is clear about who has what roles, how rights and burdens are shared, and—absolutely essential—how to unwind the project if things implode.
With or without a lawyer’s help, here are the key terms your collaboration agreement should cover:
1. How Are Responsibilities Shared?
The first critical question is: What has to get done, and who will be responsible for doing it? Keep in mind that there are several components to any successful writing project, often having little to do with putting pen on paper:
First is planning and plotting: What’s the book about? From whose perspective will it be told? To what age or readership is it pitched? How will the book be organized: how many chapters, how long, and what will each cover? And don’t assume that, because you’ve answered these once, you’re done; many answers need to be revisited multiple times as the project progresses.
Second, particularly if this is nonfiction, is research. Unless you are THE expert or authority on the topics you plan to cover (and probably even if you are) someone will need to – or hire and direct others to—review the literature; get (and comply with) permission to access confidential and protected resources; keep excellent notes and records; and go back to the trough periodically to be sure your information is current.
To be clear, research isn’t always limited to nonfiction. Even if you heed the admonition to “write what you know,” unless you’re writing pure fantasy you may need to check geographical details, weather data, scientific information, biographical data, and the like.
Third is the business end, which includes: finding your agent or publisher (and possibly lawyer, publicist and others); reviewing and negotiating contracts; dealing with editors and others throughout the project; and getting permission to use (or confirming “fair use” of) third party material. When it’s just one writer, it’s pretty clear who does what: you do it ALL (unless you’re lucky enough to have an involved – and competent – spouse or partner to whom you can offload various task. However, too much offloading and you have a collaboration on your hands).
Fourth, of course, is the writing: words strung into compelling sentences into logical paragraphs into can’t-put-down chapters, all edited and polished and edited again. This is often the hardest part: Buttocks in chair, fingers on keyboard, grinding it out.
Lastly, you need to divvy up these tasks in a way that is both fair and efficient. Don’t assume either that your partners agree that you’re the strongest writer or that, even if you are, you should be tasked with the most writing. Perhaps your team sees you as the strongest business mind, or the person with the strongest publishing knowledge or industry connections, or the best interviewer, etc., and expects you to focus on that aspect of the project.
Until it becomes clear who does what, it’s unlikely that things will fall into place as they need to for success.
Learn more about topics like this at indieLAB, an interactive event for entrepreneurial authors, freelance writers and independent publishers seeking to develop a publishing strategy, build a platform, grow an audience and get paid for their work.
2. How Are Benefits and Burdens Shared?
Some people become writers for fame (long shot); others for fortune (what fools!); yet others to express themselves in words—whether through fiction (requiring excellent imagination) or nonfiction (requiring skill in organizing and presenting facts). Whatever your motivation, the main benefits of being an author are: credit (having a certain work attributed to YOU); control (having the right to determine how and when particular content is copied, adapted, sold and displayed); and profit (a right to receive the financial fruits of people’s willingness to pay for the privilege of reading or otherwise experiencing your work).
The second key to a successful collaboration is a fair allocation of these benefits: Who will be publicly credited with creation of the work? (I have seen legal battles over whose name goes first, and in what type size, on the cover of a co-authored book.) How will earnings be divided? (It is natural, but not always fair, to assume a 50/50 or 1/3-1/3-1/3 split.) Who gets to decide whether and by whom the work may be copied, adapted, sold or displayed? (Often the person charged with business responsibilities has extra influence, but it is not unusual for all writing partners to have equal say or veto power.) Ideally all of these questions will be answered in the collaboration agreement.
But don’t forget that it’s not all fame, fortune and dividing the spoils: As noted above, there are jobs to be done, and potential liabilities to be shared: If a third party claims your work infringes, or sues for defamation, negligence or breach of privacy, who is responsible, either to hire the lawyer or to pay the damages? Sharing these risks sounds fair, but what if the claim relates only to one author’s contribution?
Suppose, for example, that one of three co-authors copies a passage from another work without clearing it with her co-authors or getting permission from the original creator? Or suppose that one writer misidentified a mushroom that causes some readers to get violently ill before the book is recalled? Should all of her co-authors share that risk, or should the entire liability be borne by the author responsible for the error or infringement? (And should you buy insurance from the outset to protect against some of these liabilities?) These are questions you don’t want to answer on the fly, when passions are heated, or an expensive defense or settlement offer is pending. Rather, ideally you will agree at the outset how to deal with these issues so that if a crisis arises the resolution will be seen as fair and impartial to all.
3. How Can You Unwind the Arrangement?
Often the hardest thing to agree on is the exit strategy, what to do if things sour and one or more collaborators want out. The key question here is when and how can collaborators walk awayand, if they do, what are the consequences? Answers vary from
- forced abandonment of the project, i.e., no one gets to continue it (rare and hard to enforce); to
- allowing each of the authors to extract their contributions and proceed however they wish (with no future sharing or communal duties); to
- one co-author is entitled to continue the project on his own, with a duty to pay an agreed – or to be determined- royalty to his former partners.
The ultimate answer generally depends on why a party wants to call it quits and where in the process that happens: if it’s because she just got a job, had a baby or simply changed her mind, and the project is still in the early stage, the simplest solution is generally for that party to confirm she is abandoning the project and waive any claim so her ex-partners can continue on their own. If it’s a real falling out well into the process, that’s usually the toughest to work out, but will probably involve one or more collaborators effectively “buying” out the others. A good lawyer or agent, particularly one who’s already lived through a challenging separation, can often help co-authors agree on a reasonable solution they can all live with, in the unlikely event a dire breakup happens, and help write up that solution clearly and succinctly.
Assigning responsibilities, sharing benefits and burdens, and devising the right exit strategies are the biggest issues, but not the only ones. Additional considerations include:
- If there is a disagreement the parties can’t resolve, must they mediate and/or arbitrate, or can an aggrieved party go right to court?
- What state law and location will apply if there is a dispute?
- Are there restrictions (aside from those imposed by the publisher … which there will surely be) on a collaborator’s right to use the same characters, create a sequel, or be involved in creating related or competing works?
- Can a party assign her benefits or burdens to a third party, or is her collaborators’ consent needed to do so? (Typically yes.)
In short, there is both art and science in creating a contract that makes sense for particular individuals about to engage in a deliberate collaboration meant to create aspecific work of authorship. So before you and your compatriots launch yourselves into a collaboration, follow the old lawyer admonition and get it in writing!
Howard Zaharoff is a lawyer and writer who lives and works in the Boston area. His articles on legal issues have appeared in Writer’s Digest, The Writer, Publishers Weekly, Folio:, and The Computer Lawyer, among others. He is also the author of Stump Your Lawyer! (Chronicle 2007), and his humorous essays have appeared in The Funny Times, McSweeney’s, HumorTimes.com, Points in Case, Computerworld, and Amazing Stories, among others. He has taught and lectured on copyright and publishing law, and many of his IP and publishing law articles can be found here.