I’ve had a number of questions come across my *virtual* desk in recent months about writing in collaboration with other people or organizations in terms of divvying up the responsibilities and making sure the legal rights make sense. There’s no particular law about how to go about writing with another person or organization and it can happen in a number of contexts. Some common examples include:
1/ Co-authoring a project—book, series, article etc.
2/ Working in partnership with an organization, perhaps because you’re writing about the organization’s work.
3/ Working as a ghostwriter to tell someone else’s story. (This is really a sub-category of writing work-for-hire type pieces.)
All written projects ultimately involve a copyright in the completed work, and your co-authoring arrangement will say something about who owns the copyright in the completed work, but the focus of this column is on the co-authoring agreement itself: what it will likely say in what circumstances.
Agreements to work with another person or group are simply contracts—they can be written or oral. If written, they can be a formal document that everyone signs or they can be a collection of emails or handwritten on notepaper.
If you are doing a standard co-authoring arrangement with another writer, it’s a good idea to write down how you plan to work together and to account for problems and questions that may arise, including who is responsible for which parts of the project, what happens if one of you is unable (for health or other reasons) to continue to work on the project, or how to deal with disagreements about the work. You don’t need a lawyer for this, but if you have an agent, they may have access to a standard “collaboration agreement” you could use that covers most of these points.
Working with organizations can be a little trickier, depending on the context and whether they have a legal department to work with. Many kidlit writers, for example, want to tell stories involving particular zoo animals or museum collections and there is often an office at the zoo or museum you can work with. Likewise, if you’re writing about a famous person (like Elvis!) their estate may have a lot to say about what they will and won’t “allow” you to do. The challenging part here is that you may need your own legal advice if an organization either asks you for a significant amount of money to use their proprietary information/images, or to write about something in their collection or care. While you obviously can’t take copyrighted work and use it without permission, and often without paying royalties, a lot of what you may want to write about will not be protected by intellectual property rights. You can usually write an unauthorized story about a person or real life event as long as you do not break any laws (e.g. defame anyone or infringe a right of privacy, non-disclosure agreement you previously might have signed, or a similar right) in the process. Sometimes it can be difficult to parse out whether the benefits of working with an organization to tell an “authorized” story are worth the compromises you may have to make in terms of the story you want to tell. That’s where legal experts may be useful. These situations can be hard to navigate without an expert to help you, but usually there is a way around these issues with a little help and advice.
If you’re engaging in work-for-hire type projects (and I say “type” because there’s a legal definition of work-for-hire in the United States that doesn’t absolutely match the way the publishing industry uses the term), your contract will state that you do not hold copyright in the final work. However, you may get an author credit or co-credit, depending on what the arrangement says. Also, you may receive a flat fee or royalties. That’s all a matter of contractual negotiation. There may be non-disclosure terms in the agreement under which you promise not to publicly disclose your work on the project or any information you learned while working on the project. There may be non-disparagement clauses, saying that you cannot say anything bad about the person who asked you to work on the project.
Whatever type of collaboration you may be considering, it is important to also bear in mind that if you have a pre-existing relationship with the subject of your writing (a person or organization), you may have prior contracts in place that limit what you can write. This recently came up in the high-profile case of Mary Trump’s book Too Much and Never Enough. Because she was writing about her family and because she and other family members had signed a non-disclosure agreement (NDA) about matters relating to the family’s estate, a court battle was waged about whether the NDA impacted her ability to publish the book. The terms of the NDA were found not to cover the situation that arose for a number of reasons, largely to do with the public profile of her uncle, the President of the United States, and the limited context in which the original NDA was signed.
Writing collaborations can be a thorny business but the results are often well worth it as joint projects can lead to more fruitful ideas and a more collaborative creative process when all works well.
Having gotten to the end of these paragraphs, I hope I haven’t been more confusing than helpful! There’s a lot to digest when writing in partnership with others and sometimes a bit of help or advice is useful (and of course the usual disclaimers apply: this column is not formal legal advice but simply informational).