CO-AUTHOR ISSUES IN BOOK CONTRACTS
IVAN HOFFMAN, B.A., J.D.
Authors often collaborate to write a book. There are an extensive number of important issues that potentially arise as a result, both as between the authors and as between the authors together and the publisher.
For the sake of simplicity, I will assume for this article that the writing will be done by just 2 authors and for 1 publisher. The focus of the article is about the 2 authors’ relationship to the publisher and visa versa as well as, to a lesser degree, the authors’ relationship to each other. Thus, the issues in this article are in addition to those issues that otherwise exist between collaborators including but not limited to issues that relate to the death of one author, rights to terminate transfers, renewals of older copyrights and other related issues. You should read “In Bed Together: The Problems of Collaboration,” “Terminations of Transfers” and “The Problems With Old Publishing Contracts.”
The Copyright Law
Section 101 of the United States copyright law says:
Section 201 of the same law says:A “joint work” is 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.
These 2 sections, taken together, mean that unless each author’s contribution is distinct, discrete and separately distinguishable within the collaborative work (i.e. they each write separate chapters, for example), the law has to examine what the intention of the authors was. However, often that intention is not clearly stated and thus it is up to the court to decide what the authors intended. Thus, unless the authors specifically express (hopefully in some form of written collaboration agreement) that they intend to keep their contributions separate, then if their contributions are indistinguishable one from the other, the law may deem them to be joint owners of the whole.The authors of a joint work are co-owners of copyright in the work.
Joint ownership of the whole has many implications which can and should be straightened out in the above and below discussed written collaboration agreement, as should the many other issues discussed in this article. But as indicated, this article’s primary focus is on the joint authors’ relationship to the publisher and the issues that arise as a result of that contract. The discussion in this article thus presumes that the authors are in fact and in law such joint authors because their work was created with the intent to merge it into one, “unitary whole.” If indeed they are separate contributors, then it is likely there will be separate publishing contracts for each author individually.
The Publishing Contract
Within the four corners of a publishing agreement, there are some significant issues that relate to joint authors. The overall effect of joint authorship is that each author is responsible for the conduct, contractual and other obligations of the other. They are bound, as the contract says, “jointly and individually.” This means that if the publisher has rights against one, it has rights against both. It means that if one author defaults in that author’s obligations under the agreement, the other author may suffer the results of the publisher’s rights with regard to such default even if that second author is not at fault in any manner. Among, but not all of, the contractual areas in which these issues arise are:
1. DeliverablesI am not suggesting that any given co-author publishing contract will ignore these issues or be unfavorable to the co-authors in any particular respect. I am suggesting instead that these issues present themselves and that it is in the co-authors’ (and, as discussed below, the publisher’s) best interest to pay attention to these issues and see how, if they are handled at all, they are handled in the said contract.
2. Representations, warranties and indemnities
3. Copyright and related rights
4. Accountings including most importantly, cross-collateralization issues
5. Rights and obligations to do Revisions
6. Next book provisions
Deliverables: each author is responsible for the timely and satisfactory delivery of the totality of deliverables of the authors collectively. This means that it is the responsibility of both authors to monitor the progress of each other to make certain that the chapters or other deliverables are done on time. In the event the publisher requests edits etc. and this has to be done within some contractually stated time parameter, each author is responsible for the performance of the authors together.
Representations, warranties and indemnities: here too, both authors are responsible for the representations and warranties of the authors collectively. If one author is found to have (or in the worst case scenario it is merely claimed that the author has) breached these, both authors are subject to the contractual penalties involved for such a breach as set forth in the indemnity clause.
Copyright and Related Rights: the authors collectively are going to be making some grant of rights to the publisher. This may be as to the entirety of their rights in copyright or to some lesser degree. Whatever that grant or license, it will be made jointly and individually. If there are provisions in the publishing agreement that entitle the authors to a reversion of those rights granted or licensed to the publisher, such as in “out of print” situations (read “Out of Print Provisions in Book Contracts”) or otherwise, then both authors become owners of the collective bundle of rights that so revert. Again, unless there are provisions in the written collaboration to deal with such a situation, there can be legal and business complications as both authors try to exploit the rights so reverted. (Read “A Legal Nightmare: The Unwritten License” for a sense about how non-exclusive rights can be troublesome).
Accounting and Cross collateralization issues: these are potentially a significant issue for the authors since it may be that each author comes to the joint relationship with some prior contractual relationship with that publisher. And in that prior contractual relationship, each author may have unrecouped sums in his or her account. Initially of course it is absolutely essential from the author’s standpoint that in the within publishing agreement all references to the right of the publisher to cross-collateralize other accounts with the one established for this book be deleted. (read “Cross Collateralization in Publishing Contracts”).
It becomes infinitely more complex if this provision is not deleted. If the current, jointly authored book sells well enough, whether or not sufficiently well to recoup the advance, but one or both of the authors is not recouped under some other agreement with the publisher, the publisher may have the right to recoup from both authors in the current contract unrecouped amounts due only one or both authors in other contracts with that publisher. The Publisher may have the right to recourse against both authors in the current contract and this recourse may be as to both royalties as well as any unpaid advances to a particular point in time. Thus, if the unrecouped author’s share of the advances or royalties due under the current contract were insufficient to allow full recoupment of a sum owed under another contract, the co-author could find his or her royalties charged for the overage or indeed the entirety. Thus, what the co-author agreement should provide is for separate accounts as to both co-authors without any right of cross-collateralization between them or as to any prior agreements.
Rights and Obligations to do Revisions: Revisions are potentially a hot button issue in negotiations (at least if the authors do not simply sign what is put in front of them). Here is the scenario: what if the publisher decides to do a revision and offers both authors the right to do that revision and only one such author decides to do it? (read “Revised Edition Clauses in Book Contracts” for other issues.) Given that there are usually provisions that exclude a “refusing” author any rights to participate in the sales of the revised edition and given that income from the initial edition is likely to suffer as a result of the publishing of the revised edition, and given that both authors are thus going to lose income from that initial edition but the participating author will receive income from the revised edition, what happens to that income from such revised edition? Is this to be shared with the original co-author even if the original co-author has refused to do the revision? Keep in mind that as co-authors, absent a written collaboration agreement dealing with the point, the law presumes the collaborators to be equal owners of all rights in the book and that would presumably include all rights in any contracts related to the book. As indicated above, each author has an obligation to account to the other for any income received from the exploitation of the book. The implication here is that the non-participating author would have at least a claim to that author’s share of the income received from the revision.
And if the publisher has the right to bring in another co-author to co-write with the “participating” co-author of the original work, then it is likely that the publisher has the right to charge the costs of that new co-author against the sums due both authors of the original edition, how does this right affect the account of the original co-authors? And even if the publisher can only charge the account of the non-participating author, what if that account is not sufficient to cover the total costs of the replacement party? Can the publisher charge the account of the participating author as well?
And are the non-participating author’s representations, warranties and indemnities applicable to the revised edition since the original contract generally says that all the terms of this contract are applicable to any revised edition?
Next Book Provisions: Often authors will agree to allow a publisher to have an option on their next book. (Why any author would allow such a provision is another matter of course. Read “Next Book Provisions in Publishing Contracts.”) Whose next book? Is this the next book jointly? Individually?
These are just some but certainly not all of the issues that might arise as between joint authors and a publisher and as between the joint authors internally. While this article talks about co-authors and their need to be careful about what they sign, it is also in the best interests of the publisher to have a clearly drafted agreement. If one side to a transaction is unhappy, my long deal-making experience has shown me that both sides will be unhappy. A contract is supposed to solve more problems than it creates and a contract that is unclear often creates more problems than it solves.
Moreover, it is the wise collaborators that have a written, thorough collaboration agreement prepared and signed to cover these and other issues presented by such a relationship.
© 2002 Ivan Hoffman. All Rights Reserved.