Writers Should Protect Their Rights in the Context of a Collaboration

Giselle Ayala Mateus, Esq.

One of the most interesting personalities in terms of professions is that of writers. They get involved with a project and rarely stop until they are finished. Writers often write alone. However, there are times when writers find each other as a perfect fit to collaborate in a project, a screenplay, a series of books, etc. Considering the effort and dedication involved in developing a good piece, writers should always start by having a clear agreement about each other’s rights regarding the collaboration project. This is important because once writers join their efforts, the final product is co-owned by all contributors. This fact has all kinds of legal consequences.

To agree on the terms of the collaborations, writers enter into a Collaboration Agreement. A collaboration agreement is a contract between two or more writers looking to work together on a book, a magazine, a screenplay, or alike. A collaboration agreement is fundamental for a writer. Especially if the writer wants to own the work product of the collaboration, have a say on what happens with the work, receive the economic benefits of participating in the project, and be credited for their collaboration. Additionally, a collaboration agreement can protect writers’ heirs and keep them far from litigation.

What do we include in a collaboration agreement?

A collaboration agreement like any other contract should fit the parties’ needs and reasonable expectations regarding the deal. However, in general terms, a collaboration agreement should at least contain the following provisions:

The Title of the Project

Especially if the writers, soon-to-be collaborators, are very active in their industry and often participate in multiple projects, it is of fundamental importance to have a clear name for the project so that there is no confusion about the subject of the collaboration. The project title does not necessarily need to be the final name of the book or the play. Nevertheless, it will give clarity to all interested parties. Now, if the title has a specific significance for one or both of the collaborators, it might be necessary to include a clause that explains how the collaborators will decide on the name of the final project.

Ownership

Another important point is that those collaboration agreements should always include an express declaration that all collaborators will be co-authors and co-owners of the collaboration’s work product. Additionally, if the collaborators have decided to divide their economic rights in unequal percentages, this should be clearly expressed in the text of the agreement. Otherwise, their economic rights will be equally distributed by default. Usually, unless otherwise agreed by the collaborators, they both, as co-authors, have an undivided exclusive copyright interest in the project, which means that authorization to create derivative works, use or explore the projects requires mutual consent.

The contributions of each writer

We already explained the default rule, all collaborators are co-authors and enjoy equal rights. However, if the collaborators intend to make a different agreement, it would be better to make specific provisions about the contributions of each collaborator. This may directly impact other legal issues like the kind of credit that each collaborator will receive. Additionally, including specific provisions regarding collaborators’ contributions can make everything easy if one of the writers desist from the project.

Credit

One project can be the breaking point of a writer’s carrier, or it may have no effect; however, in either case, writers want to be properly credited for their work. Accordingly, collaboration agreements should include a clear provision regarding the credit that will be recognized to each writer; this included decisions like which name goes first.

Copyright Registration Reasonable Efforts

Although the benefits of copyright registration are well known in the creative industries, it is better to include in the collaboration agreement a provision that requires the parties to make reasonable efforts to have the work registered. Additionally, the provision may also state that each co-author may act as an agent for the other to register the work before the U.S. Copyright Office.

One or More Projects… Partnership?

To avoid conflicts and misunderstandings, especially in regard to what is owed to each collaborator, it is fundamental to make an express declaration of whether the collaborators will work together or one or more projects; in the case of several projects, it is a best practice to limit the scope the agreement by the number of projects (naming each of them) or by the including a specific provision about the duration of the agreement. If the writers are exploring and are not sure about the project’s success, they may want to subject the validity of the agreement to a period of time, after which they can decide whether to renew the agreement or to terminate it definitely.

Additionally, it is always a best practice to include a clause that states the writers are not establishing in any form a partnership. A partnership can be a very risky venture which obligates the partner without limit and makes them responsible for each other’s obligations. Additionally, partners share equally in profits. Like it was mentioned before, especially writers involved in several projects are interested in limiting the scope of their obligations.

Breach and Termination

Finally, writers should include an express clause that clearly defines at least the following: i) what constitutes breach; ii) what would happen if one of the parties desist from the project; iii) whether the non-desisting party may continue with the project alone; iv) what rights, if any, will be recognized to the writer who partially collaborated; v) whether the writers’ heirs have any rights concerning the project if one of the collaborators becomes incapacitated; vi) whether the surviving collaborator is required to obtain permission from the other collaborator’s heirs to authorize the use, sale, or exploitation of the collaboration’s work product.

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