Collaborations, Part 2

In this second part of our discussion of collaborations (click here to read the first part), we’ll examine a collaboration agreement and discuss the salient terms. What are the financial arrangements and the split between co-authors? How are the credits and bylines accorded? Who’s liable for any claims arising out of the collaboration? There are countless considerations and just as many pitfalls.

What are the contractual arrangements in a collaboration? Well, when you talk about contracts, bear in mind that there are two kinds in a collaboration. One is the publishing contract; the other is the collaboration agreement. Depending on the nature of the project, sometimes the former comes first, sometimes the latter. If the book is already sold – a celebrity autobiography, say – the first contract drawn up would be the one with the publisher. Thereafter, when a co-author is found, a collaboration agreement would be drafted. But if the book requires the celebrity and the writer to spend several weeks together to work up a presentation for publishers, then the collaboration agreement would be the first document drawn up, the publishing agreement coming later, when the book is sold.

Sometimes the terms of the collaboration can be worked into the publishing agreement, but I recommend a separate collaboration agreement because things often need to be worked out between collaborators that aren’t covered in publishing agreements. Publishing agreements define the collaborators’ joint obligation to their publisher, but they don’t define their obligations to each other.
Let’s examine a collaboration agreement and discuss the principal terms.

The first thing is how the money is to be divided when the book is sold. There are countless ways to do this, depending on the project, the amount of money involved, the relative importance of the celebrity and co-author, and many other factors. Let me outline a few scenarios.

• A famous actress is offered a lot of money by a publisher to write her memoirs. Though her story, like any other, requires a certain degree of skill to tell, 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 his name on a book and offer him a flat fee of $10,000, which to him is a lot of money. They also offer him a “with” or “and” byline on the book, but no participation in royalties, magazine rights, or foreign translation or any other subsidiary rights. He accepts the offer because it’s a good opportunity to break into books, earn some money, and bask in the presence of a legend of stage and screen.
• A young dairymaid 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 little green 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, he convinces her to team up with his client the Pulitzer Prize-winning journalist, whose identification with the project will legitimize it in the eyes of his publisher and his public. For that privilege, however, the journalist wants 75 percent of all revenues earned by the book. He also wants the first $25,000 of the publisher’s advance; if his agent is unable to line up a deal for an advance greater than $25,000, the dairymaid will receive nothing until the book earns more. The principle here is that professional writers depend entirely on their writing for a living, whereas their collaborators usually earn a living from some other source (acting, running a business, playing ball, milking cows). Thus the writer’s financial needs must be served first. In no position to argue, the dairymaid agrees to these terms.
• A tycoon who built Fingfang Enterprises from scratch into a multibillion-dollar multinational octopus decides his life would make fascinating reading and goes to an agent, asking him 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, he tells the man he’ll have to pay a writer $5000 to spend a month interviewing him, examining news clippings and other documents, and writing an outline. The man will recover his $5000 if and when the book is sold, but if the book isn’t sold he loses his investment. After recouping his $5000, 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. “Done,” says the man, switching his cigar to his left hand so he can shake the agent’s hand with his right.

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 subject can’t get his 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 he’s more important, and an accommodation must be negotiated. When that happens, some tradeoffs may be made on the other terms of the collaboration.
After the question of dividing the proceeds, the thing that 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 subject-author: “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, say, some athletic stars or ex-convicts (though I can think of exceptions), but if it’s the chairman of a conglomerate’s board or a former President of the United States, the appearance of a co-writer on the byline of his book may cause potential buyers to question just how candid or interesting the book will be. Therefore, the subject-author 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. Even here the writer might be able to negotiate a separate acknowledgment on its own page, as opposed to citation in a long list of contributors to the preparation of the manuscript, which reduces the writer’s involvement to the same level as that of the copy editor, typist, and secretary.

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. 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.

Related to the byline is the question of whose name the copyright will be taken out in, and this should be stipulated in the collaboration agreement. But generally speaking, if both the subject-author and the collaborator are signatories to the publishing contract, then the book will be copyrighted in both their names, for both are defined as “Author” in that contract even if the co-author’s name does not go on the cover of the book.

Liability is the next matter to be considered. 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 subject-author might tell his collaborator a story whose veracity the collaborator cannot check and that subsequently triggers a lawsuit. Is the collaborator to blame? On the other hand, suppose the co-author embellishes on something the subject-author told him, 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 subject-author 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 his legal expenses or damages from the other. If, say, the subject-author guaranteed that he would be liable for the truth of any anecdotes, assertions, or opinions and the co-author guaranteed that he’d be liable for the veracity of his research and of his interviews, there’s a chance that the blame for a lawsuit could be clearly assigned to one or the other of the authors. 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 subject-author tells him; the subject- author is responsible for reviewing the research and writing of his collaborator. For safety’s sake, the manuscript should be reviewed by both the authors’ lawyers and the publisher’s.

Another important matter is expenses: How are they defined, and who pays for them?

Among the more common expenses in a collaboration are research assistance, the transcription of tape-recorded interviews, picture permissions, legal expenses, and typing. If the collaborators don’t live in the same place, there may be expenses for travel and accommodations and for long-distance phone calls.

The collaborators should agree at the very outset which expenses are legitimate and perhaps fix a ceiling on them. It might, for example, be inappropriate for the co-author to charge for the cost of paper, cassettes, or public transportation to the library for research, as these are usually part of a writer’s costs of doing business. It can work the other way, too. Suppose a famous Hollywood movie director is collaborating with a New York writer and has to come to New York on business. While in New York, he intends to sit down with his collaborator and work on the book, but that’s not the sole purpose of his visit. It would be patently unfair for him to charge his first-class airfare and one week’s lodging at the Sherry-Netherland Hotel to the collaboration.

The expenses are usually laid out by the party incurring them, who then recovers them from the publisher’s advance on acceptance of the manuscript. The burden of expenses is usually divided in proportion to each collaborator’s participation in the proceeds from the book. Thus, if the collaborators are splitting all revenue from the book 50-50, they should split the expenses 50-50, too; if 75-25 in favor of the subject-author, then he should pick up 75 percent of the costs while the co-author assumes 25 percent.

Like the expenses, the duties of the collaborators should be spelled out, though they are usually harder to quantify. The subject-author should agree to make himself available for interviews by the collaborator; to furnish newspaper clippings, diaries and journals, and other written material; and to cooperate with the coauthor in arranging interviews with his friends, family, and business colleagues. The co-author pledges to supplement the principal’s interviews with his own research, which includes checking the veracity of statements and assertions made by the subject-author. The co-author may also stipulate delivery dates of the manuscript to the subject-author; he may also have to clear permissions for quotations or pictures and to deliver signed permissions or other releases to the subject-author. Other duties and obligations may be specified here: The co-author might have to promise to phone the subject-author every two weeks with a progress report or send him each chapter of the book as it is finished.

It is very important to stipulate approval of the manuscript when you prepare a collaboration agreement. In most cases, the subject-author 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 subject-author’s inclusion or exclusion of certain material. So there is sometimes built into the agreement machinery for settling disputes, with the agent or editor or a lawyer being appointed arbiter.

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 in the exploitation of subsidiary rights, including serial, British and foreign translation, and movie and television. The agent’s commission schedule must be detailed, along with any special provisions concerning him: authorization for him to deduct certain expenses, a time limit on his handling of the project or of subsidiary rights, appointment of him as final arbiter of disputes between collaborators, etc. If there are two agents, as sometimes happens when the principal is represented by one firm and the collaborator by another, the questions of which one will handle the marketing of the manuscript, negotiation, collection of proceeds, and the exploitation of subsidiary rights must be answered.

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 some 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 in 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.

Richard Curtis

From How to Be Your Own Literary Agent by Richard Curtis,  published by Harcourt Houghton Mifflin


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