Monday, December 8, 2008

Co-Authorship – Part 1 of 2

By Raelene Gorlinsky

We seem to be seeing an increasing number of authors who co-write. Authors may be doing so under both names (Booktitle by Annie Author & Wanda Writer) or under a joint pen name (Booktitle by Patty Penname).

A co-writing project could be the result of advance planning or may be sheer serendipity. Perhaps you and a fellow writer just happened to fall into a conversation where you kicked around story ideas—and before you knew it, had together developed a plot and characters, all the basics of a story. Or maybe you were lamenting that you develop great plots but your submissions get rejected with comments about the flat characters—and the writer next to you mentioned how she developed fantastic characters but then couldn’t think what to do with them. And voila, a partnership based on complementary skills is born. Or the idea could even have come from a third party, an editor or agent who put the two of you together.

But however it starts, it is important that both of you think through the relationship and how it’s going to work. And then put that in writing.

Co-writing has a number of contractual and legal ramifications. What you are creating is a "joint work"—a book prepared by two or more people with the intent, at the time of creation, that their contributions will "be merged into inseparable or interdependent parts of a unitary whole." [U.S. Copyright Act]

Many publishing contracts state the default of how coauthoring is handled. Our ECPI contract has a standard clause regarding multiple authors:

"Whenever the term "Author" refers to more than one person, such persons will be jointly and severally responsible for all duties, obligations and covenants under this Agreement, and shall share equally in all royalties and other amounts to be paid under this Agreement, unless otherwise specified in writing signed by all parties."

That means not only that the royalties are split evenly between the co-authors, but also both of you are fully responsible for all contract terms, for all legal liabilities and commitments.

A publisher has the right to ask to see the collaboration agreement between co-authors when contracting a joint work, although it is my understanding that many do not actually request it. However, there are circumstances where the publisher may certainly want to see the agreement, such as if the royalties are not to be an even split or if you want to specify which name gets listed first when the individual co-author names (rather than a joint pen name) are to be shown. A document signed by all parties showing agreement to this arrangement, and dated before the contract is executed, is what the publisher needs to be sure their contract does not conflict.

It is extremely important that there be a written (signed and dated) collaboration agreement between two or more authors who are working together on any writing project. Do not say, "But we're best friends/sisters/spouses." Things change, life happens, attitudes can alter, external circumstances arise. What if your writing partner dies or becomes unable to write? Or decides to move to Tibet and live in a monastery halfway through the book? Or gets pregnant with sextuplets? Who's going to do what part of the work now, and who gets how much of the profits?

Your written agreement can be drafted by a lawyer, or you can draft something yourself and have a lawyer review it. There are sample author collaboration agreements and advice available online. Even if you don't use a lawyer, get everything down in writing and both of you sign it! (And if you are married, some states require spousal signature, since this relates to joint assets or income earned during the marriage.)

If you write more than one book together, you may need to modify the agreement for each book. Or you could have an agreement that covers several books or a series. The agreement needs to state the planned book title(s) or series.

Working out these details in advance will prevent a good deal of potential conflict and stress later. Lacking any legal document stating otherwise, everything will be considered an equal split between the two of you, and that may not be how you want it, and may not cover unexpected circumstances. Talking about all this up front—and then writing it down—is critical to the reasonable functioning of a team, whether two or more people.

(Part 2 will cover what should be in the collaboration agreement and issues related to submitting and selling a joint book.)

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