IN BED TOGETHER: THE PROBLEMS OF COLLABORATION

IVAN HOFFMAN, B.A., J.D.


No matter how the relationship begins, no matter how much they want each other in the early stages, collaborators must recognize that it may all go sour. They should, accordingly, take care that any potential issues between them are resolved in the form of a written agreement. The passion that is the creative process should not have anything to block its success.

By "collaborators" I do not intend to limit this article to merely two writers jointly creating a project. The issues of collaboration apply to the ghostwriter and the "name" author, to the writer working with an illustrator or photographer or any other combination we can imagine. The term as I use it, however, excludes a relationship where one has created an existing project and another is then engaged to add to it in some fashion. For issues relating to this set up, please take a look at my earlier article entitled "Work Made For Hire Agreements."

Thus, some, but certainly not all, of the issues to which collaborators must pay attention are:

1. The Percentages of Ownership. The law presumes, in the absence of an agreement to the contrary, that no matter how much or how little each contributes, each collaborator is an equal owner of the project. If this is not the parties intention, the percentages should be clearly set forth.

a. Under this category, how will the money be shared? Certainly it can be based upon the percentage of ownership but on the other hand, one collaborator may "buy out" the other for a flat fee. Moreover, unless it is otherwise set forth, each collaborator owns a right to the whole work whether or not revenue arises from the particular portion contributed by the particular collaborator. For example, in the case of a song containing both words and music, revenue derived from the exploitation of only the music but not the words is still shared by both collaborators.

b. Further under this category, how is the workload to be shared? In other words, who does what? And what if the "who" does not do "what" he or she is supposed to do? How is that dispute to be resolved? And who is to make that call?

c. What is the authorship credit arrangement to be? Whose name goes first? This is often not an insignificant issue since readers often know a work only by the name of the first-mentioned author.

2. The Rights to Use The Work. In the absence of an agreement, each creator is entitled to license and use the work, on a non-exclusive basis, as long as he or she accounts to the other creators for any income so received. While this may not be an issue as long as the user obtains the signatures of all creators, one can envision a circumstance where each creator wants to offer the project to separate users. Accordingly, the collaboration agreement should allocate the final decision-making power to one of the collaborators.

3. The Continuing Project. What if, during the creation of the project, one of the collaborators gets incapacitated or dies? Since each creator can pass his or her share of the project to heirs, how will the continuing or surviving creator be treated? This is a significant issue and has numerous variations. The parties might be able to agree that in either of these circumstances the incapacitated or deceased creator must have his or her rights revert to the other. They can provide insurance coverage for this, similar to what is known as "key man" insurance. Sounds reasonable, does it not? But what if the project is nearly done so that the "loss" to the project is not as meaningful were the event to have taken place during the intensive part of the creative process? Then it doesn't sound as fair to the relatives of the deceased. Why should the survivor get the whole project if the deceased or disabled contributor had done nearly all the work? But what if the project has just begun? Is the survivor to work with the heirs of the deceased who may not have a clue about the project? And what is the definition of incapacitated?

These are some but by no means all of the issues that collaborators must face. It is a negotiation.

But isn't all getting into bed a negotiation?

© 1996 Ivan Hoffman

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This article is not intended as a substitute for legal advice. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. You should consult with an attorney familiar with the issues and the laws.

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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.

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