THE GHOSTWRITER AGREEMENT
IVAN HOFFMAN, B.A., J.D.
There are a number of legal and business issues that all parties must face when negotiating a ghostwriter agreement. Since the term “ghostwriter” is used loosely to apply to agreements in which the writer receives and does not receive credit, let me continue this vernacular here.
1. The Parties: there are at least 2 and sometimes 3 parties to this agreement. Clearly the ghostwriter is a party as is the party whose name, either solely or jointly, will appear as the author. However sometimes the arrangement includes a third party publisher who has made a deal with the “name” party to have that party “write” a book, such as a memoir or some such project, but then the publisher in turn makes a separate deal with the ghostwriter to do the actual writing. This has implications in terms of rights and payment, as discussed below. If there is a third party publisher involved, then:
2. Credit: as indicated above, the ghostwriter may or may not be given credit for the writing and this is a topic of negotiation. The range can be from either no credit at all, making it thus appear as though the “name” party is actually the writer, all the way to something like an “as told to” credit. As with all deals, the terms are determined on the basis of the relative bargaining power of the parties. A ghostwriter who has successfully written as a “ghost” before (with or without credit) is in a bargaining position to obtain contract provisions that a newer writer might not. Further, the relative marketability of the “name” is a factor. If this is a project involving a major and prominent person, whether movie star, politician or otherwise, then that marketing clout is a factor not only in terms of credit but all the other provisions as well.a) the publisher-ghostwriter agreement should be negotiated and drafted with the publisher-“name” party agreement clearly in mind so that there is a correspondence of provisions including royalties, warranties and the like.
b) if the underlying deal between the “name” party and the ghostwriter is made first, before any third party publishing deal is made, the provisions of this underlying deal have to be negotiated in contemplation of a third party publishing deal and provisions such as when payment is due, what royalties or other payments are made to the writer, what rights are retained or granted, what happens if no deal is made etc. have to be included. Read “The Gap Trap.”
3. Rights: there is no “given” in this area. It is not to be assumed that a ghostwriter shall give up all of the ghostwriter’s rights, whether in the form of a work made for hire or assignment of all rights. As with the discussion under “Credit” above, it depends on the formula W3M (“Who Wants Who More”) and this means that rights questions are up for determination within the four corners of the negotiation. Keep in mind, that except if there is a written agreement transferring exclusive rights to another party, the actual creator of the copyrightable work (i.e. the ghostwriter) owns all rights to that copyrightable work (unless the ghostwriter is a bona fide employee of an employer, a fact not assumed by this article.)
4. Payment: Clearly quite important and related directly to the issue of Rights. If the ghostwriter is being asked to give up all of the ghostwriter’s rights, there may be a lump sum payment made to the writer, generally at various milestones of deliverables. However, even if the ghostwriter is giving up all of the rights, the ghostwriter can also negotiate for a royalty and percentages of all revenues derived from the work as well as an advance against the same and so on. Again, nothing is to be assumed and there is nothing inherent in a work made for hire arrangement that precludes royalties etc. to the creator. The royalty and participation will be a function of how many parties are involved in the transaction and the total pay out required. This of course is also a function of bargaining power discussed above. It is often glib and a knee-jerk response to provide that the ghostwriter and the name subject will split the “author’s share” equally. Not necessarily so.a) Within the discussion of rights are the issues related to what rights are being given up and what retained by the ghostwriter. We would assume that either the third party publisher or the party engaging the services of the ghostwriter will have print publication rights, perhaps including translation and other rights associated with print rights. But there are a large number of other rights involved, many of which can be more valuable than the print rights. These include but are not limited to movie and television rights, Internet rights, electronic rights such as DVD, CD-ROM, game rights and the like. These have to be discussed within the negotiation.
b) If there is a third party publisher involved, then the issue becomes which party shall own the rights given up by the ghostwriter. Shall it be that third party publisher or shall it be the “name” subject. This of course will be the subject of the agreement between that third party publisher and the “name” subject.
c) Part of the “rights” discussion should be a negotiation dealing with the right to do revised versions of the original work.
5. Representations, Warranties and Indemnities: Certainly as to materials provided by the ghostwriter, there should be provisions covering these issues. However, frequently in these type projects, the ghostwriter takes materials provided by the subject and the ghostwriter should then seek to exclude such materials from any such representations, warranties and indemnities and indeed, the ghostwriter should obtain these protections from the name subject. If there is a third party publisher involved, then in the agreement between that publisher and the name subject and in the agreement with the publisher and the ghostwriter, these issues should be covered.a) Certainly, if the ghostwriter is retaining certain rights, then it is incumbent on the other party or parties to negotiate for their own participation should the ghostwriter exploit those retained rights. Same as well if the ghostwriter is giving up some or all of the rights since the ghostwriter is still entitled to be paid for the exploitation of all of those rights, as discussed above.
The above discussion is merely about those points peculiar to the ghostwriter agreement and of course there are many other provisions that are part of the larger publishing agreement including but not limited to deliverables, representations and warranties and indemnities (other than as discussed above) and the like and all of these points should be included in a thorough agreement.
© 2001 Ivan Hoffman