I got a call a while back from someone who told me he had a great idea for a book. He’d previously been a detective in New York and had seen and lived a lot of experiences surrounding criminal enforcement proceedings involving various types of bad behavior and injustice inflicted upon innocent people. He said he a lot of great stories to tell, but that he’d never written a book before so he didn’t know how to go about telling them properly. But he’d met a guy in a bar who had some experience in the publishing world who said he could help, the idea being that the former detective would tell the other guy his stories and anecdotes, so that the other guy could make them into something readable. I asked him whether they’d signed a collaboration agreement yet wasn’t surprised to hear, given his lack of experience, that they hadn’t. I took it a step further and asked him whether he knew what a collaboration agreement was, and he said he didn’t.
A collaboration agreement is a contract between two or more parties setting forth their respective undertakings and obligations towards each other regarding a joint project that they intend to create and monetize. It’s particularly useful because, in the absence of such an agreement the copyright law in the United States – which is where they happen to be – will make certain presumptions that may or may not properly reflect the parties’ actual intentions. The first, and arguably most important consideration, concerns the ownership of the created work.
The U.S. Copyright Act defines a joint work 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” and the default position, in the absence of anything contrary, is that contributors are co-owners of the copyright. This, in turn, goes to issues such as the licensed use of the work, as well as the duration of its protection. Whereas copyright in a literary work generally lasts for seventy years beyond the death of the author, a jointly-created work lasts for seventy years beyond the death of the last surviving creator.
Non-exclusive uses of a joint work may be licensed separately by either of the co-owners, and the proceeds from such uses is ordinarily shared equally on a pro-rata basis between the joint owners. But a properly structured collaboration agreement can change these provisions to better reflect the contributors’ intentions. It may be, for example, that one of the collaborators is slightly savvier with respect to such matters and should therefore be the “go-to” or decision-making party on the others behalf. The parties may likewise determine that proceeds should not be divided equally for some reason and a collaboration agreement can specify that accordingly.
In some instances, as was the case here, the parties may intend to write the book on speculation by contributing their efforts voluntarily on a good-faith and unpaid basis, and share both its ownership and any resulting profits equally. But in the event the parties agree to work together on a book that is not intended to be held out as a joint work, one party will typically pay the other(s) for their efforts and contributions while claiming copyright ownership in the work for themself. Compensation for the commissioned contributor might take the form of a flat fee with no further participation from any proceeds resulting from its publication or other exploitation. Or the parties might agree to share the proceeds in some degree, whether on an equal basis or otherwise.
In the case of a joint work the parties may also wish to consider what expenses, if any, that might have been incurred get deducted from the proceeds of any licensed use prior to their division. Or they may also want to address what happens if one party dies, or simply walks away, prior to the completion of the project. What degrees of participation, if any, survive that act?
Another important consideration is whether or not either party can compete with the joint work by creating other new, independent works that cover the same subject matter. While as a matter of public policy courts are generally unwilling to prohibit people from making a living, it’s nonetheless reasonable and enforceable to not impair the work’s chances for commercial success in the marketplace. Spelling this out, right up front, in a collaboration agreement may therefore prevent the need for costly litigation down the road.
At a more basic level, crediting the author(s) of the work is yet another reason to have an agreement in place. It may be that one collaborator’s name resonates better in the literary world, so terms such as “and” or “with” concerning the referenced parties are likewise worthy for consideration.
If and when the completed work is picked up for publication, the publishing company will certainly expect the party/ies with whom they are contracting to warrant and represent that the work is new and original and not subject to any prior liens or claims of infringement. The publisher will also expect the contracting party/ies to indemnify and defend it against any allegations going to infringement, and here again the collaborating parties may wish to spell this responsibility out between them.
A collaboration agreement can also stipulate how and where and when disputes that might arise between them get settled, and the applicable law under which the dispute will be interpreted. This is particularly important if the collaborating parties live in different jurisdictions with conflicting or differing subject matter provisions. The parties may prefer to attempt either mediation, or binding arbitration, as alternatives to traditional litigation and this call all be spelled out too.
Another issue that can and does arise when two or more parties work together on a book is which literary agent or outside representative, if any, shall represent it in the literary market and which of the parties will make commercial decisions arising from such representation.
And finally, if not primarily, a proper collaboration agreement should set out with as much precision as possible exactly what it is that each party shall contribute to the project, and when. It may be particularly useful in this regard to append an outline or a summary of the contemplated work to the agreement, along with a calendar specifying dates by which the parties’ respective contributions and works will be delivered.
By this point in our conversation the former detective agreed that I’d raised some important points that he hadn’t previously considered, but that he now would. I commended him for that, and told him that a collaboration agreement is more than just paperwork – it’s the blueprint for turning good intentions into shared responsibilities and mutual success.
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