Realistically, you are probably not going to write up an agreement for every small joint project you do. If you are co-authoring a magazine article that is likely to appear one time and earn you $500 at best, a written agreement with your partner might be overkill. But if you are embarking on a book-length work or a screenplay that will consume hundreds of hours of your time or that you hope will earn a truly interesting sum of money, it would be a mistake not to put a collaboration agreement in place. Similarly, if you and a co-writer work together on a series of short works (e.g., a song-writing team, co-authors of a regular column) a collaboration agreement could turn out to be the most important legal document you ever sign -- or don't sign -- relating to your writing.
The lawsuit over the musical Rent illustrates how a collaboration agreement could spare writers and their heirs a lot of headaches and a lot of money spent on legal fees. At age 29 or so, Jonathan Larson (from my town, White Plains, New York) began work on what ultimately turned out to be one of the most highly acclaimed Broadway hits of its era. Along the way, he enlisted a playwriting professor and dramaturg, Lynn Thomson, to help prepare a version of the show for an off-Broadway production. Thomson had a written agreement with the non-profit theater that was producing the show, but not with Larson. Larson died an early death while the show was in dress rehearsals. The musical was an off-Broadway success and, when it was about to move to Broadway, Thomson approached Larson's estate seeking a percentage of the royalties and a credit. When negotiations broke down, Thomson sued. In the end, Thomson lost at trial and the verdict in favor of the Larson estate was affirmed on appeal. (Read the court of appeals decision here, which explores, among other things, the arcana of when a "joint work" is created under the Copyright Act. I used to work with and now follow on Twitter one of the lawyers who handled the litigation @amygutman.) Suffice it to say, a written agreement between Larson and Thomson would have been very wise for all concerned.
Every collaboration is different, and no one agreement is suitable for all writing relationships. At a minimum, you should consider addressing these questions.
1. Who are the parties to the agreement?
2. Who will own the copyright in the resulting work? Do you intend to be "joint authors," which has a number of default implications regarding who can license the work to others and how the revenues would be shared, unless you reach a different written understanding? Or do you intend some other kind of relationship? A work made for hire? An assignment of the entire copyright interest to one of you? Your decision regarding authorship will also need to be reflected in the copyright registration application. (See this prior post on the basic nuts and bolts of copyright protection.)
3. How will the work be credited? Whose name will be first? Will it be styled: "you and me," "you with me," "by you as told to me," or will I be a completely invisible ghost?
4. How will the revenues and expenses be divided? Will one of you receive the money and pass it through to the other (usually a bad idea for the "other")? Can each of you incur expenses that will be reimbursed from the revenues? Who is going to shell out the cash needed for any permissions fees?
5. What responsibilities will each collaborator have on the work and what are the due dates for each contribution?
6. Who will made the decisions on how to exploit the work: selecting an agent, choosing a publisher, deciding whether to accept financial terms, etc.? Will such decisions be made jointly? What happens if you disagree?
7. What happens if you can't sell the work or one of you doesn't uphold your end of the bargain because of illness, death, competing obligations, laziness, incompetence? How will you terminate the relationship? What rights, if any, will each of you own in the work?
Anticipating what happens if the collaboration fails is every bit as important as (or perhaps more important than) anticipating what happens if the relationship is a roaring success. One of the model agreements linked to below, takes this approach:
If a Collaborator is unwilling to continue or complete work on the Work, the Collaborators shall enter into a written agreement setting forth the rights of the withdrawing Collaborator, including what authorship credit, compensation and copyright ownership, if any, shall be shared with the withdrawing collaborator. The remaining Collaborator shall have the right to complete the work alone or with others.
In the event that either Collaborator dies or suffers a disability that will prevent completion of his or her respective portion of the Work, or of a revision thereof or a sequel thereto, the deceased or disabled Collaborator shall receive payments pursuant to Paragraph 3 pro rata to the proportion of his or her work completed or, in the case of a revision or sequel, shall receive payments pursuant to Paragraph 3 after deduction for the cost of revising or creating the sequel with respect to his or her portion of the Work. Each Collaborator hereby agrees that the remaining Collaborator(s) shall have the sole power to license and contract with respect to the Work, and approval of the personal representative, heirs, or conservator of the deceased or disabled Collaborator shall not be required.Another one of the model agreements takes this agreement-to-agree approach in the context of a collaboration on a screenplay:
If, prior to the completion of the Work, either Party shall voluntarily withdraw from the collaboration, then the other Party shall have the right to complete the Work alone or in conjunction with another collaborator or collaborators, and in such event the percentage of ownership, as hereinbefore provided in paragraph 1, shall be revised by mutual agreement in writing.(This clause obviously doesn't address death or other involuntary withdrawal, which could make it impossible to reach a new "mutual agreement.")
The point is to anticipate how best to handle the unwinding of the relationship so that the rights in your work are not consigned to perpetual limbo, if you go your separate ways.
8. How and where are you going to resolve any disputes that arise between you? Mediation? Arbitration? I'll meet you in court?
A collaboration agreement should be signed and dated by all parties. Some contractual provisions relating to copyright and other matters much be in a signed writing to be enforceable.
I have often heard writers complain that negotiating a written contract with a collaborator oozes distrust and would threaten to sour the writing relationship. But if you can't cooperate on crafting a simple agreement, the odds of your having a successful writing marriage are not so hot. And if you can't come to terms before you write your work, imagine the how dysfunctional your relationship will be if your work is wildly successful and you don't have a clear prior understanding about how the money and credit are to be allotted and how decisions about further exploitation of the work are to be made.
There are many examples of collaboration agreements on the web, including here, here, here, here, and here. Again, every collaboration is different. In all likelihood, none of these forms will be suitable for your work without modifications. But these examples may help to get you thinking about what your own collaboration agreement should contain.
You could surely benefit from having a lawyer look at the draft agreement that you and your collaborator draw up. Indeed, the terms of your collaboration agreement could turn out to be more important than the terms of your publishing agreement. But I realize that, because of the expense, a legal review is not always going to happen. Generally speaking, memorializing your understanding with your collaborator in writing is better than not doing so -- even if you are unable to have a lawyer take a look at it.
There are useful good articles on the web concerning collaboration agreements, including this one by Lloyd Jassin. The discussions in The Writer's Legal Guide and especially The Writer's Legal Companion can also assist you.