COLLABORATIONS - Part 2

What are the financial arrangements in a collaboration? What is the split between co-authors? How are the credits, bylines and copyright ownership accorded? Who’s liable for any legal claims arising out of the collaboration?

The Split

There are countless ways to arrange the compensation, depending on the project, the relative importance of the principal author and/or the writer, the amount involved and many other factors. Let me sketch a few scenarios.

• A famous actress is offered a lot of money by a publisher to write her memoirs. Though her story requires a certain degree of skill to relate, she and her publisher agree that just about any competent writer will get the job done. They go to a young journalist eager to get a byline, and offer a flat fee of $10,000, which to the writer is a lot of money. They also offer a “with” byline on the book, but no participation in royalties, foreign translation or movie or any other subsidiary rights. The writer accepts the offer because it’s a good opportunity to break into books, earn some money, get a credit and bask in the presence of a legend of stage and screen.

• A young student is walking through the woods, minding her own business, when there is a tremendous roar and a blinding flash, and next thing she knows she’s in a spaceship being interrogated by aliens. They take her to their world for a year, then return her to earth and drop her off in the woods where they picked her up. She immediately runs to a literary agent’s office babbling about what happened to her. Persuaded that her tale is true (agents are suckers for a good story) but realizing she’s going to have a tough time making anybody else believe her, the agent persuades her to team up with the agent’s Pulitzer Prize-winning journalist client, whose identification with the project will validate it in the eyes of both the publisher and the public. For that privilege, however, the journalist wants 75 percent of all revenues earned by the book.

• A tycoon who built Fingfang Enterprises from scratch into a multinational titan decides his life would make fascinating reading and goes to an agency, asking them to package his life story. Since the agent is by no means as sure as the industrialist that publishers will fall all over themselves to bid for such a book, they tell the man he’ll have to pay a writer $10,000 to spend a month interviewing him, examining news clippings and other documents, and writing an outline. Fingfang will recover his money if and when the book is sold, but if it isn’t sold he will lose his investment. The book’s agent recommends that after Fingfang recoups his outlay, he and the writer will split all income 50-50. The man balks at 50-50: After all, it was his life, and all this writer is doing is putting down what he tells him, right? Wrong, says the agent; there is far more involved in collaborating on a book than merely taking dictation. The man still balks. After all, once the book is out the writer’s contribution ends, but he’s got to go on all those talk shows the publisher is going to send him to. Seeing his point, and realizing that this is the kind of man who isn’t happy unless he thinks he’s gotten a better deal than the other guy, the agent suggests that after the book earns $100,000, the split will go from 50-50 to 75-25 in the mogul’s favor.

As you can see, there is no one way to slice the pie, but there is a kind of guiding principle. In theory, all collaborations should be 50-50 propositions because the principal can’t get their book written without the writer, and the writer doesn’t have a story without the subject. But on many occasions one member of the team turns out to be more important than the other, or feels more important, and an accommodation must be negotiated. When that happens, some tradeoffs may be made on the other terms of the collaboration.

The Byline

After money, the thing that invariably concerns writers most is the byline: Will their name appear on the cover of the book, and if so, in what form? With a “with”? With an “and”? In the same-size typeface or smaller? For many writers, the byline is almost as important as the money; for some, it is more so. For that reason, the byline is the commodity most frequently used as barter in negotiating with the principal: “I’ll keep my name off the book if I can have one-third of the proceeds instead of the one-quarter you’ve offered me.”

The byline may be worked out in all sorts of ways. Prominent figures often feel that the appearance of a co-author’s name on their books implies that they are not entirely literate. That may be a reasonable assumption for persons in some walk of life, in which an “as told to” byline is appropriate. The idea here is that professional writers depend entirely on their writing for a living, whereas the principal earns a living from some other source. But if it’s the chairperson of a corporation, the appearance of a co-writer on the byline may cause potential buyers to question just how candid or interesting the book will be. The principal may insist that the book be done as a straight ghost job, and recognition of the writer’s contribution restricted to an acknowledgment inside the book.

For other principals, the issue of the byline is a matter of complete indifference, and indeed, they can be most gracious in according credit to their partners, a “with” byline or even an “and”. In still other cases, the co-author’s byline is the more recognizable of the two, almost the raison d’être for the book, and the publisher insists that it appear prominently on the cover and in all advertising.

The Copyright

Related to the byline is the question of, in whose name the copyright will be taken out, and this should be stipulated in the collaboration agreement. In most cases the copyright will be filed in the name of the principal only. But the matter is negotiable, and it’s possible for the book to be copyrighted by both principal and co-writer. If that is the case, the writer should bear in mind that that he or she will share in not just the money and glory but the liability as well, for both are defined as “Author” in that contract and are equally responsible for all warranties and liabilities.

The Liabilities

If someone brings a lawsuit against the publisher and authors claiming libel, invasion of privacy, defamation of character, infringement of copyrighted material, or some other grounds, which of the authors is liable? It’s easy to imagine the responsibility going either way. On the one hand, the principal might tell the collaborator a story whose veracity the collaborator cannot check, and it subsequently triggers a lawsuit. Is the collaborator to blame? On the other hand, suppose the co-author embellishes something the principal claimed, or goes to the library and plagiarizes a quotation, or is lazy about checking the accuracy of the principal’s assertions, and a lawsuit ensues. Is the principal to blame?

If both of them signed the publishing contract, the publisher is not going to try to sort out who is responsible, or more responsible, for the actionable material in the book. Both agreed to the warranty and indemnity clauses in the contract, and both are therefore equally liable for any breaches of those clauses. If, however, the two made some provision in their collaboration agreement about who was responsible for what in the book, then one may be able to recover legal expenses or damages from the other. If, say, the principal guaranteed that he or she would be liable for the truth of any anecdotes, assertions, or opinions and the co-author guaranteed that he or she would be liable for the veracity of research and interviews, there’s a chance that the blame for a lawsuit could be clearly assigned to one or the other. This procedure is known as cross-indemnification: I indemnify you, you indemnify me.

In actuality, it’s extremely difficult to keep sharp the dividing line between the authors’ responsibilities. The co-author is responsible for checking the things the principal tells them; the principal is responsible for reviewing the research and writing of the writer. For safety’s sake, the manuscript should be reviewed by both the authors’ lawyers and the publisher’s.

The Expenses

Among the more common expenses in a collaboration are research assistance, picture permissions, legal expenses and transcription of recorded interviews (though voice to print may expedite the process). If the principal and writer don’t live in the same place, there may be expenses for travel and accommodations.

The collaborators should agree at the very outset which expenses are legitimate, and perhaps set a ceiling on them. These days, most research can be done sitting at one’s desk, but if travel is necessary, say to visit an interviewee or an out-of-town library, it’s fair for the writer to recover expenses.

The Obligations

Like the expenses, the duties of the collaborators should be spelled out, though they are usually harder to quantify. The principal should agree to make him- or herself available for discussions with the collaborator; to furnish personal documents like diaries and journals; and to cooperate with the coauthor in arranging interviews with friends, family, and colleagues. The co-author pledges to supplement those interviews with their own research, which includes checking the veracity of statements and assertions made by the principal. The co-author may also stipulate delivery dates of the manuscript to the subject-author for review and criticism; the co-author may also have to clear permissions for quotations or pictures. Other duties and obligations may be specified here: The co-author might have to promise to report to the principal every X weeks with a progress report or turn in chunks of the book as they are completed.

The Approval

It is very important to stipulate approval of the manuscript in the collaboration agreement. In most cases, the principal is granted sole approval, or sole approval subject to the editorial judgment of the publisher. This seems only fair, for after all it’s his or her book, not the collaborator’s. Yet the collaborator may have some strong objections to the principal’s insertion, removal or alteration of certain material. So it’s a good idea to build into the agreement a mechanism for settling disputes, with the agent or editor or a lawyer being appointed arbiter.

The Agent

If an agent is involved, there should be language in the collaboration agreement mutually authorizing that agent to act on behalf of both parties in the submission of the manuscript, the negotiation of the book contract, the collection and disbursement of proceeds, and the exploitation of subsidiary rights, including audio, foreign translation, and movie and television. The agent’s commission schedule must be detailed, along with any special provisions such as their right to deduct certain expenses, or a time limit on the agent’s efforts to sell the project, etc. If there are two agents, as sometimes happens when the principal is represented by one firm and the collaborator by another, the question of which one will handle the submission of the manuscript, negotiation, collection of proceeds, and exploitation of subsidiary rights must be answered.

The Termination

Finally, there ought to be some provision for the termination of the collaboration in the event of the death or disability of one of the parties, because of failure to perform contractual obligations, or because the collaborators simply don’t get along. If the collaboration does collapse, both authors may owe the publisher a refund, or one member of the team may owe the other money advanced toward the development of the project. Precisely how the accounts are to be settled should be made clear in the agreement between the writing partners. No document can blend two conflicting personalities, which is why I repeat my advice that if you and your collaborator don’t hit it off, break off the relationship before it mires the project in grief if not a lawsuit. But if the two parties enter the relationship in a spirit of good faith, a well-constructed collaboration agreement will go far toward insuring the success both of the friendship and the book.

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A version of this article was published in my blog Publishing in the 21st Century.

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Richard Curtis’s latest book, Digital Inc., Inside The Transformation of Publishing from Print to E-Books, is now on presale.