"Any Damn Fool Can Be Accurate -- and Dull": Can I Be Liable to My Readers for Lying About Myself?

In 1929, actress Joan Lowell published a memoir of her childhood entitled The Cradle of the Deep. According to The Los Angeles Times, Lowell reported how her sea-captain father had raised her on a trading ship, the Minnie A. Caine, until she was 17.  She learned her first swear words at age two, witnessed a man being eaten alive by a shark at age 16, personally harpooned a whale, and occasionally played strip poker with the all-male crew.  When the ship caught fire off Australia, Lowell managed to swim three miles to safety with a kitten clinging to her back. Cradle of the Deep was a Book-of-the- Month Club selection, sold more than 100,000 copies, and was slated to be adapted into a talking movie produced by D.W. Griffith.  But then Lowell's childhood neighbors spoiled the fun and revealed to the press that her story was almost entirely bilge water.  Although Lowell's father was, in fact, a sea captain, Lowell herself had spent only a few months at sea and had lived most of her youth high-and-dry in Berkeley, California. When reporters questioned her about the factual "inconsistencies," Lowell explained that a writer's first duty is to tell a good story. "Any damn fool can be accurate -- and dull," she said. The Book-of-the-Month Club offered refunds to book buyers, but took no legal action against Lowell. There's more about Lowell and a great picture here.

If Joan Lowell had published her "memoir" today, she would have run a high risk of being sued by class action lawyers purporting to represent readers duped by her deception. Make no mistake, if you lie about yourself in your memoirs, you are courting legal liability to your publisher, as well as public disgrace if you are discovered.  But how likely are faux memoirists to be found liable to their readers?  And should the courts entertain duped readers' claims at all?  Here are some thoughts:

1.  There is a long and colorful history of writers telling bald-faced lies about themselves in memoirs and autobiographies.  An amusing Wikipedia article describes 32 instances of "fake memoirs" in which "a wholly or partially fabricated autobiography, memoir, or journal of an individual is presented as fact."  And a few years ago The New York Times published an article headlined "A Family Tree of Literary Fakers," profiling, among others, Margaret Seltzer, author under the pseudonym Margaret Jones of a largely fabricated gang memoir, Love and Consequences; J.T. LeRoy, who wrote two "memoirs" before New York Magazine revealed that LeRoy's life was an elaborate hoax perpetrated by Laura Albert; and Binjamin Wilkomirski who wrote Fragments, a memoir of his boyhood in a concentration camp -- a story marred in the minds of some readers by the fact that the author was later revealed to have "spent the war in relative comfort in Switzerland."  But my favorite memoir controversy revolves around Lillian Hellman's Pentimento, a book that I read with pleasure years ago and which is filled with literary gossip and vinegary anecdotes.  Yet to this day, it has never been clear whether Hellman really smuggled $50,000 in a fur hat to help the anti-Nazi resistance (a story from Pentimento that was made into the movie Julia) or merely inserted herself into the life story of Muriel Gardiner Buttinger -- a possibility discussed in this fascinating post.  To my knowledge, no reader ever sued Hellman, although her veracity was very much at issue in the long-running libel case she brought against the novelist Mary McCarthy.

2.  Of course, anyone can sue anybody for just about anything under our legal system, but, while there are doubtless factual distortions in many memoirs and autobiographies, lawsuits by readers against authors for alleged false accounts of their own lives are rare.  (Only two prior to 2011-- according to this Boston Globe blog post.) Of course,when you make false (and defamatory) statements about others, you are cruising for a libel lawsuit (as discussed in these past RightsofWriters posts), but only a very few lawsuits on behalf of readers against memoirists or autobiographers for lying about themselves have been "successful" (by some definition of success) for the plaintiff readers -- or even for their lawyers.  Two reasons: (a) it is difficult to articulate how a false memoir materially "damages" a reader; and (b) ordinarily no one reader has a financial stake exceeding the cost of the book and therefore has no incentive to sue.  Indeed, I do not know of a single false memoirs case, brought on behalf of readers, that has resulted in a judgment on the merits.  (If you know of one, please email me.)  The cases I've read about have all been settled (like most civil lawsuits) or eventually withdrawn.  So it remains to be seen whether a case of this kind is ultimately winnable on the law.

3.  Because an individual reader doesn't have a sufficient economic incentive to file a lawsuit, the legal threat to the faux memoirist generally takes the form of a class action lawsuit -- i.e., lawyers who are seeking to represent the interests of an entire class of readers who, like a few specifically named plaintiffs, were duped into buying a work that was fictionalized in some respects when they believed, at the time of purchase, that it was true.  As reported in this Wall Street Journal article, there has been a proliferation of putative class actions against authors this year: i.e., a total of three lawsuits -- two of which involved the same book.  (I use the term "putative" because a case is not a full-fledged class action unless and until a judge "certifies" the class.)

4.  From the lawyers' point of view, the most successful "duped readers" lawsuit arose from James Frey's memoir of alcohol and drug addiction, A Million Little Pieces.  Frey famously admitted to Oprah that he had greatly exaggerated details of his personal experience, claiming, for example, to have been jailed for 87 days, when, in fact, he had been detained by police for only a few hours.  Thirteen class action lawsuits were filed against Frey and his publisher, Random House; the cases were eventually consolidated and settled in 2007 with the payment of $738,000 in attorneys' fees, and the promise of a refund of the book price to any reader who claimed one.  But how much do readers really care about false memoir kerfuffles?  As reported by DearAuthor.com only 1,729 readers bothered to submit a refund claim, despite the fact that Random House spent $432,000 advertising and administering the settlement.  Frey's book sold over 5,000,000 copies, so 1,729 claims represents a little more than 3/100ths of 1 percent of total readers.  Not exactly a grassroots readers' revolt.  For an argument that Frey's and Random House's conduct should not have resulted in any legal liability (because Frey's book served its intended purpose -- providing enjoyable reading), see "A Million Little Maybes," by Samantha Katze.

5. Earlier this year, author Jon Krakauer and 60 Minutes challenged the truthfulness of key anecdotes in the book Three Cups of Tea by Greg Mortenson.  Although Mortenson has publicly defended the book as a compressed version of actual events, two would-be class action lawsuits were filed against him.  Here is the complaint in an Illinois action in which a plaintiff-reader alleged violations of a consumer deception statute, breach of contract, and unjust enrichment.  The Illinois case was later withdrawn and the claim consolidated with another lawsuit in Montana (complaint here) which made certain additional claims that Mortenson's alleged falsehoods duped some people into making contributions to a charity Mortenson helped to promote.  Mortenseon recently moved to dismiss the complaint (AP's description here), and there may soon be more news about the case.

6.  Also this year, a would-be class action was filed against former President Jimmy Carter in connection with his memoir/history/polemic Palestine: Peace Not Apartheit.  The legal claims resembled those in the Frey lawsuit: breach of contract, unjust enrichment, and violation of a consumer fraud statute, with the addition of common law claims for fraud and negligent misrepresentation.  Copy of the complaint here.  Most of the statements about which the plaintiffs complained concern alleged misdescriptions of events in the Middle East, not of Carter's own life, and, as such, raise a set of concerns that are different from Frey's book, including the constitutional protections for political opinion.   Mere factual mistakes seldom form the basis for successful claims against writers or publishers, as discussed in a prior post: "Can I Be Liable for Publishing Mistaken Information?"  Plaintiffs sought to overcome this obstacle by alleging that President Carter had intentionally misstated the facts.  Last I heard, however, plaintiffs had voluntarily dismissed the complaint.  

7.  Lawyer and writer Helen Gunnarson (who tweets as @HelenGunnar) inspired this meditation on faux memoirs, contacting me a few weeks ago about an article she was writing on the Mortenson case.  As I told Helen, and as you have probably inferred, I am skeptical about the wisdom of imposing legal liability on writers for lying to their readers.  Don't get me wrong.  I don't think memoirists should just make things up, without at least clearly disclosing their modi operandi to their readers.  However, I believe fabrication is primarily an ethical issue, not one for the courts.  I largely share the views expressed in this Los Angeles Times post that lawsuits against memoirists are "silly."


8.  Helen told me an anecdote about memoirist Mary Karr deciding not to write about an event that she vividly recalled because friends convinced her it could not have happened the way she remembered it.  As Karr has flatly said, “I try not to write anything not true.” That worthy sentiment strikes me as the ethical pole star of memoir writing, but as memoirist William Loizeaux observes in this article, "remembering is always a tricky business."  Loizeaux insists that "The line that should be most closely tended is the line of trust between writer and reader."  The farther that the memoirist departs from factual certainty, the greater the ethical duty on the memoirist to signal clearly to his readers that they are entering the realm of speculation or invention.  Loizeaux again:

when a memoirist writes, "we must have wept, being a family of inveterate weepers," we understand that a lachrymose scene to follow is informed imagination. These words are from Mary Karr's Liars' Club, which attempts to establish trust by letting the reader know how much truth is being told.

9.  Good intentions aside, I assume that virtually all memoirs and autobiographies are littered with falsehoods.  Most inaccuracies are probably inadvertent, arising from the fallibilities of human perception and memory.  But some varieties of falsehood are, I suggest, inherent in the modern craft of memoir.  As a lawyer, I am repeatedly struck by the inability of witnesses, who are sworn to tell the truth and who believe they are telling the truth, to accurately repeat conversations that occurred only a few months before their testimony.  As a result, I have no faith whatsoever that any dialogue recorded in a memoir is “true” in any literal sense.  Similarly, in light of the repeatedly demonstrated fallibility of eyewitness testimony, there is little reason to believe that the proliferation of physical details that give memoir its verisimilitude are genuine.  The dialogue and details in a memoir are, at best, psychological truths.  As one blogger explains, there are at least three conflicting varieties of truth competing for the allegiance of the memoirist ("the facts as they are, the facts as I see them, and the facts as I feel them"); he goes on to suggest that James Frey, Greg Mortensen, and David Oliver Relin (Mortenson's co-author) were only trying "to get us to feel their emotional truths a little too much.” Well maybe.  I am more inclined to agree with Brian Hale, a professor at Ohio State University, who told The Christian Scientist Monitor:  "The memoir is a strange kind of performance.  It's halfway between fiction and testimony . . . Anybody in his right mind knows that a memoir is unreliable." Yes, there is a difference between reporting mistaken memories about our lives and willfully lying about our lives, but do we really want legal liability to readers to turn on that difference?  Should Joan Lowell have been liable to her readers for her tall tales?  I don't think so. 

10.  Again, this is not to say that lying in memoirs is -- or should be -- free of legal consequences. For example, if you lie in your memoirs, you are likely in breach of a warranty in your publishing agreement.  The standard Simon & Schuster contract contains a promise that "if the [author's work] is not a work of fiction, all statements in the [author's work] asserted as facts are true or based upon reasonable research for accuracy." A breach of that warranty may not give the publisher a direct claim against its author for lying, but it does give the publisher the right to have the author indemnify the publisher for all losses it sustains as a result of claims against it arising from the authors' lies.  If an author breaches her promise to tell the truth, and the publisher is damaged as a result (e.g., is sued and/or obliged to provide refunds), the warranty may oblige the author to cover the publisher’s liability and attorneys’ fees.  I do not know whether Random House sought repayment from James Frey in connection with the class action settlement payments or the cost of the defending the thirteen lawsuits, but a lying memoirist is certainly playing with fire.  Just ask J.T. LeRoy a/k/a Laura Albert, who was ordered to pay $116,000 in damages and $350,000 in attorneys' fees for allegedly defrauding a film production company by selling the screen rights to LeRoy's autobiography that turned out to be fiction.

11.  Finally, you might want to take a look at the work of Ben Yagoda (author of Memoir: A History) and Dan DeLorenzo. They have have devised this amusing rating system for the "truthiness" (to adopt Stephen Colbert's great coined term) of memoirs.  Saint Augustine comes out with high ratings, Margaret Jones/Seltzer, not so high.

Cultivating a Healthy Loathing for "Work Made for Hire" Agreements

The "work made for hire" clause is the bete noire of freelance writers.  While the clause is frequently very unfair to authors, it is not unfair in all circumstances; it's never your friend, but there are times when it is not necessarily your enemy.  Following are twelve questions and answers that may help you to cultivate a healthy, not-unduly-paranoid loathing for "work made for hire" agreements.

But first, in digesting this somewhat geeky post, it is useful to know that, as explained here, any "original work of authorship" is subject to copyright protection the moment that it is "fixed in any tangible medium of expression."  For example, a love letter is instantaneously subject to copyright protection as it flows out beneath your fountain pen.  By way of further background, the U.S. Copyright Act uses the term "author" to refer to all types of creators: writers, composers, visual artists, choreographers, filmmakers, architects,  musicians, computer software programmers -- anyone who creates a copyrightable work.  (See Section 102 of the Copyright Act for a general list of the types of copyrightable works.)  The "work made for hire" doctrine addresses the question:  Who is the "author" of -- and the owner of the copyright in -- certain types of works at the moment when they come into existence?

1.  What is the essential difference between a "work made for hire" and the typical copyrightable work?  Ordinarily when you create a copyrightable work you are its "author" and, at least initially, the owner of the copyright.  (See Section 201(a) of the Copyright Act.) A "work made for hire" is a notorious exception to that default principle.  If a work qualifies as a "work made for hire," your employer (or the person or entity that commissioned you to create the work) is deemed the "author" and initial copyright owner, even if he/she/it contributed no copyrightable expression whatsoever to the work.  In other words, the employer (or commissioning party) owns all rights in the work; you own none -- ever (unless you enter into a contract in which your employer -- or the commissioning party -- bestows some rights upon you). No wonder that the American Society of Journalists and Authors has called work-made-for-hire agreements "all rights contracts on steroids."  (See the ASJA's excellent primer on all-rights agreements here.)

2.  What practical difference does it make whether you sign a "work made for hire" agreement or simply grant broad rights in your work to the commissioning party?  There are two major downsides to a "work made for hire" relationship.  First, as stated, you never have rights all in a work that you create on a "for hire" basis.  Everything embraced by the copyright belongs, at all times, to the commissioning party.  So, for example, if you were to create new works including characters or plot lines that appeared in the "work made for hire," you could be found to have infringed the commissioning party's copyright.  Of course, as discussed in this earlier post, an assignment of your entire copyright interest would put you in a similar "rightless" position.  This brings me to the second major downside: under the Copyright Act, a writer who assigns his copyright at least retains a right to terminate that assignment between the 35th and 40th year after it is made. By contrast, a "work made for hire" is forever.  Since you are not deemed to be the "author" of a "work made for hire," you or your heirs cannot exercise the termination right.

For example, in the Bob Marley case, the court found that five record albums recorded by the great reggae star between 1973 and 1977 were "works made for hire."  Marley therefore never owned the copyrights, which belonged instead to the "employer," Island Records, a subsidiary of Universal Music Group.  Consequently, Marley's family was unable to exercise the termination right to recapture ownership of the albums after 35 years and thereby negotiate a better financial deal for the rights going forward.  Of course, the great majority of works created in any medium have no commercial value by the time the recapture right kicks in.  However, if your work, like Bob Marley's, is one of the rare long-lived exceptions, the fact that you signed a "work made for hire" agreement instead of a simple grant of rights or even an outright copyright assignment could be crucial.  An "all rights contract on steroids" indeed.

3.  How paranoid should you be about "work made for hire" clauses in contracts for your freelance work?  Only reasonably paranoid.  For many types of mundane works, you may have no interest in ever creating derivative works or recapturing the copyrights in 35 years.  Freelance advertising copy.  Annual reports for corporations.  Beer making instructions.  Marketing brochures.  Press releases.  Technical writing.  I wrote all of those kinds of works in my days as a freelancer, before going to law school, and I have never regretted for a moment having no copyright interest in them.  On the other hand, I also published books, magazine articles, and op-ed pieces, and I would not have been pleased to sign "work made for hire" agreements for those works.  When, as a freelancer, you create a novel, a short story, a non-fiction book, a significant piece of journalism, a poem, a song, a play, a screenplay, or a variety of other works into which you pour something of your soul and which have at least some potential to be re-purposed (e.g., turning them into longer works, or re-using characters) it is entirely rational to be reluctant to sign a "work made for hire" agreement or, for that matter, any form of "all rights" agreement.  It's a complex personal, economic, and legal equation, which will vary from writer to writer and work to work.  There are some areas of writing, such as multi-authored textbook publishing, where "work made for hire" arrangements are commonplace.  There are other contexts in which a "work made for hire" contract is little more than a rights grab.  The various conventions of particular markets for writers are beyond the scope of this post, but are addressed in some of the online and printed references mentioned below.

4.  All right, then, when is a work a "work made for hire."  Under Section 101 of the U.S. Copyright Act, a “work-made-for-hire” can arise in only two circumstances: (1) when you, as an “employee,” create any type of copyrightable work within the scope of your employment, or (2) when you, as a non-employee, are specially ordered or commissioned to create one of nine designated types of works and you and the commissioning party agree in writing that the work will be a “work made for hire.” 

5. What are the tricky parts of the "employee" branch of the "work made for hire" doctrine?  The works you create for your employer within the scope of your employment are presumptively "works made for hire."  No written agreement is required.  For example, whatever I write for the law firm that employs me belongs to the firm, not to me.  If my firm is paying me for written work that I create on firm premises during regular business hours with firm computers, I don't find it objectionable that the firm owns all rights to it.  Controversies concerning employee-created "works made for hire" tend to arise in two areas.  First, there may be disputes as to who qualifies as an "employee," such that the copyright vests in the employer, rather than an independent contractor or freelancer.  That was the issue in the case of Community for Creative Non-Violence v. Reid in which the Supreme Court found that a sculptor was not an employee of the non-profit entity that retained him to create a sculpture.  Second, there may be disputes as to whether a work is created "within the scope" of the employee's job responsibilities.  If you work at The New Yorker as an editor during the day, your employer shouldn't own the short stories you are writing at home at night. While I am confident that The New Yorker does not make such an overreaching claim, other employers do sometimes include unfair anti-moonlighting clauses in their employment contracts or employee handbooks that purport to assert ownership over work created on the employees' own time.  (See this amusing blog discussing IP and moonlighting in practical terms.)  Anti-moonlighting rules may sometimes involve a "copyright assignment" issue rather than a "work made for hire" issue, but, either way, employees are too often disadvantaged by such clauses.

6.  In the non-employee/freelancer context, must there be a written agreement with the commissioning party in order for your work to be deemed a "work made for hire"?  Yes.  If you are not an employee of the person or entity that commissions your copyrightable work, then, in order for the work to qualify as a “work made for hire,” there must be a written agreement between the parties, signed by both of them. These days, an inked signature on a piece of paper may not necessarily be required.  But there must be something that qualifies as an “agreement” to which you personally affixed your name in some way. 

7.  Does a "work made for hire" agreement have to be made before you create your work?  Yes.  The parties must agree before the work is created that it will be a "work made for hire" belonging to the commissioning party.  Courts are divided on whether the parties can orally agree on a "work made for hire" arrangement beforehand, but wait until after the work is created to sign a written agreement.  Beware of efforts to recharacterize a work as a "work made for hire" after the fact.  Here is Ivan Hoffman's blog post on the regrettable practice of using after-the-fact check endorsements to memorialize the "work made for hire" status of a work.

8.  Does a "work made for hire" agreement have to include the magic words "work made for hire" for it to be effective?  Yes and no.  Ordinarily the agreement should use verbatim the magic words “work for hire" or “work made for hire” in order to give rise to a valid "work made for hire" relationship.  If it does not use those words, the agreement may be interpreted as giving rise to some other form of transfer of rights.  But be careful:  the courts have sometimes cut commissioning parties some slack in terms of the exact phrasing, as long as the intention is clear.  An agreement that speaks of the work as being “specially ordered or commissioned” or created “at the direction and expense” of another might conceivably sneak by.  (See the discussion "talismanic words" in this case.)

9.  Do all specially-commissioned, copyrightable works created by freelancers qualify as "works made for hire"?  No.  In an employer-employee relationship, any type of copyrightable work may be a "work made for hire."  By contrast, in a non-employee/freelance situation, only a copyrightable work that falls within one of nine categories specified in Section 101 of the Copyright Act can properly be deemed a "work made for hire," namely:

a work specially ordered or commissioned for use [1] as a contribution to a collective work, [2] as a part of a motion picture or other audiovisual work, [3] as a translation, [4] as a supplementary work, [5] as a compilation, [6] as an instructional text, [7] as a test, [8] as answer material for a test, or [9] as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

Not infrequently, through ignorance or subterfuge, a commissioning party will ask a freelancer to sign a "work made for hire agreement" for a type of work that can't be a "work made for hire."  For example, even if your contract for a novel says that it is a "work made for hire," it probably isn't. Similarly, in the Creative Nonviolence case above, a contract characterizing a sculpture as a "work made for hire" failed because a sculpture does not fall within one of the nine categories.  Usually, however, a sophisticated commissioning party will include a "belt an suspenders clause" that says, in essence, "if for any reason the work does not qualify as a 'work made for hire,' writer hereby assigns to the commissioning party all right, title, and interest in the work, including, but not limited to, all copyrights therein throughout the world." But, if there is only an assignment of copyright, rather than a "work made for hire" relationship, a writer would at least retain the right to terminate the transfer after 35 years (unlike the Bob Marley in the case discussed above).


10.  Are there other differences between a "work made for hire" and a conventional copyrighted work?  A few.  For example, unlike a traditionally authored work, for which the duration of copyright in the United States is the life of the author plus 70 years, a "work made for hire" enjoys a term of copyright that runs for 95 years from the date of first publication or 120 years from the date of creation, whichever is shorter.  But the essence of the "work made for hire" doctrine turns on copyright ownership and the absence of a termination right.

11.  Are there any limits on what an employer or commissioning party can do with a "work made for hire"?  Not many. Such limits as there are come from areas of the law other than copyright.  Right of publicity law or unfair competition law may prevent the proprietor of the work from using your name without your written permission.  And you can, of course, enter into a contract with the proprietor that imposes upon him any terms you both agree upon, such as the duty to pay you royalties or to obtain your permission for certain uses.  But absent a contract or right of publicity violation, the proprietor has free rein to create derivative works, combine the work with others, translate it, abridge it, change it, exploit it in all media  -- the full scope of rights of a copyright owner.

12.  What should you do when you are asked to sign a "work made for hire" agreement in a context where you believe it is unfair?  Propose a license of less extensive rights as an alternative, which gives other party what he really needs, but not the many rights he really doesn't need.  If that doesn't work, bargain for more money for derivative uses.  Or ask that the commissioning party to assign the rights to you after a period of years. Of course, if you have little or no bargaining power, the commissioning party may tell you to take it or leave it.  I you have a literary agent, she can offer you advice on the commercial realities of your particular situation.  If you don't have an agent and if it is a commercially significant project, it may be prudent to seek the advice of a lawyer concerning the contract language and your legal options.  See this earlier post on 44 sources of free or low-cost legal help for writers.

There is a wealth of good advice on how to respond when presented with a "work made for hire" contract in the ASJA primer mentioned above.  The Writer's Legal Guide also offers pointers on negotiating strategy, including the reminder that, if you do sign a "work made for hire" agreement, you should obtain a written promise of any authorship attribution you are seeking.  The Writer's Legal Guide also sagely advises that you try to bargain for a promise that, if the commissioning party cancels the project for any reason, the copyright in the work will be assigned to you.

For general information of the "work made for hire doctrine," the place to start is Copyright Office Circular 9.  There is also a short, helpful discussion of "works made for hire" at the KeepYourCopyright.org site.  The Professional Artists League has posted a feisty article on "work made for hire" abuses; while it focuses on visual artists, writers confront many of the same abuses.  New York lawyer Lloyd Jassin has written a good article on drafting "work made for hire" agreements, written primarily from the point of view of a publisher seeking to acquire works on a "for hire" basis.

Finally, please note that this post is highly U.S.-centric.  The "work made for hire" doctrine exists in some form in many countries, but the rules vary significantly from jurisdiction to jurisdiction.

No Competing Works: The Third Nastiest Clause in Book Publishing Agreements

Do you remember Harry Lorayne? If you ever met him, odds are he would remember you.  Lorayne is a memory-training specialist and performer who authored How To Develop a Super Power Memory.  He is also the poster child for the perils of the "no competing works" clause in publishing contracts.

In 1956, Lorayne signed a contract with publisher Frederick Fell for Super Power Memory, which contained a clause that prohibited Lorayne from "participating in the publication of any similar work which would tend to interfere with or injure sales of the book under contract."  Eighteen years later, when Super Power Memory was still in print, Lorayne wrote another book on memory (together with, improbably enough, basketball star Jerry Lucas) entitled The Memory Book, which was published with great success by Stein & Day.  Fell sued -- archly accusing Lorayne of "an apparent moment of forgetfulness" in disregarding the "no competing works" clause.  

A preliminary decision in the Lorayne case is reported here (but it doesn't really tell you much about the contractual issues).  I do not know how the Lorayne case was ultimately resolved; I do know that The Memory Book continued to be sold without interruption.  But, to me, the fundamental question in the case has always been: what in the world would Harry Lorayne ever write about except memory training?  If a court were to enforce a broad "no competing works" clause against him, it would essentially be saying that Lorayne could never write another book as long as Super Power Memory was available in any edition.

Specialists Beware

Like Harry Lorayne, many academicians and textbook writers spend their entire professional lives researching and writing about the same general subject matter.  Take, for example, a professor who authors a textbook on mycology or evolutionary psychology early in her career.  Strictly construed, a "no competing works" clause might mandate that she forever remain a one-book author.  Fortunately, as with covenants not to compete, the courts tend to construe such clauses narrowly, seeking to limit them in time, subject matter, or geographical scope so as not to interfere with an expert's ability to practice her profession and earn a living.

Consider the case of the late Justin Wilson, who was the author of Louisiana Outdoor Cookin'.   When Wilson later tried to publish a book with another publisher entitled Homegrown Louisiana Cookin', his first publisher sued, arguing that the "no competing works" clause barred such a sequel.  Surely, if you are a Cajun chef, living and working in Louisiana, it is unsurprising that you might aspire to write more than one book on Louisiana cookin'.  And a Louisiana court, ruled that Wilson had the right to do so, despite the contractual prohibition.  The judge's decision noted that "non-competition clauses are not favored in the law and are strictly construed against the person attempting to limit the competition."  Because the clause was not limited to a specific time period or restricted area, the non-compete was held to be "too vague and broad to be enforceable."

The essential legal treatise Perle & Williams on Publishing Law mentions another case in California is which the author went on the warpath and sued his publisher, arguing that the "no competing works" clause was an unreasonable restraint on trade in violation of the antitrust laws. (Perle and Williams don't report the outcome; if you happen to know, please send me an email.)

A Typical Clause

To be fair, a publisher is entitled to be protected against the author simply repackaging his book and publishing it a second time with another publisher. But many "no competing works" clauses go farther than they need to, as in this fairly typical example

During the term of this agreement the Author shall not, without prior written consent of the Publisher, participate in the publication of or be otherwise connnected with any work that might, in the Publisher's opinion, directly or indirectly interfere with or diminish the sale of the Work.

This provision is particularly aggressive because (1) it restricts for an indefinite period of time any "participation" in a conflicting work, even as a co-author or contributor; (2) it introduces the vague notion of "indirect" interference with the sale of a work; (3) it is not limited in the types of competing works (e.g., book-length) that it prohibits; and (4) the test of whether book two "interferes" with the sales of book one is subjective, turning entirely on the "opinion" of the publisher.

In contracts with academic writers, it is fairly common for publishers to include an additional clause along these lines:

The Author may, however, draw on and refer to material contained in the Work in preparing articles for publication in scholarly and professional journals and papers for delivery at professional meetings, provided that credit is given to the Work and the Publisher.

Helpful, but it really doesn't give you any protection when it comes to your next full-length work.

A Better Alternative

With works of non-fiction in particular, publishers will often refuse to eliminate the "no competing works" clause entirely.  However, when possible, you should at least try to negotiate a more even-handed clause. The Writer's Legal Guide recommends that the contract describe the type of successor work you are prohibited from writing

as specifically as possible as to subject matter, market, and format. Do not give the publisher the discretion to decide whether a work will compete with the contracted book -- limit the restriction to works that will actually compete with the primary work.

For example, if you are writing a textbook, you might try to limit the non-compete to another textbook on the identical subject directed to a similar academic level (e.g., high school biology students), clearly reserving the right to publish scholarly monographs or works for a general audience on the same subject.  You could also seek to make clear that a competing "work" must be book-length, and that the clause therefore has no application to articles, etc.  A somewhat better clause might look like this:

For a period of four years, Author shall not publish any book-length work on the same subject as the Work, namely [inserting here a detailed description of the "subject"], directed to the same audience, that will diminish sales of the Work.

And, if you have an idea for a subsequent work on a related subject, you can attempt to expressly carve out that work from the scope of the "no competing works" clause, e.g.:

Publisher agrees that Author may continue to write and publish books and other works dealing with mycology and may expand chapters from the Work to new full-length works.  For the avoidance of doubt, this clause is not intended to prohibit Author's publication of such works.

Of course, whether you can obtain changes of this kind will depend upon your bargaining power.  If you have an agent, she can be a godsend, advising you what's realistic and achievable under your particular circumstances.  For many authors, the language of the "no competing works" clause may not be a deal breaker, but for some specialists it ought to be.

The "No-Competing Works" Clause and Works of Fiction

The "no competing works" clause is primarily a concern in contracts for works of non-fiction. Ordinarily two novels by the same author, published by two different publishers, will not interfere with each other's sales. Neverthless, in rare instances, publishers have taken the dubious position that the "no competing works" clause prohibits re-use of the characters from a novel in a sequel. The "no competing works" clause has little genuine commercial application to fiction, and it is not unreasonable to ask that it be stricken entirely from a contract for a novel or a book of short stories.  At the very least, the publisher should be willing to clarify that the clause does not prohibit you from publishing sequels or re-purposing characters in other works.

What If Your Contract Does Not Contain a "No Competing Works" Clause?

If you do not have a "no competing works" clause in your publishing contract, then you are ordinarily free to write a book on the same topic for another publisher. That's the lesson of Wolf v. Illustrated World Encyclopedia.  But watch out for the "option clause," which may require you to offer your next book to your old publisher.  And remember that, if you granted exclusive publishing rights to Publisher X, it became an owner of a "copyright interest" in the work.  As a result, Publisher X could sue you and your new publisher for copyright infringement, if you cannibalize a meaningful amount of text from the book you published with Publisher X.  Yes, you can be sued for infringing a copyright in a work that you yourself created; do-it-yourself infringement was alleged in the case involving John Fogerty of Creedence Clearwater fame and (more or less) in the arbitration involving The Hunt for Red October, described in this earlier post.

Can Your Publisher Issue Another Work that Competes with Yours?

What about the flip side?  Can a book publisher publish two or more books on the same subject by different authors?  The answer is:  ordinarily yes.  For example, Harry Lorayne's publisher could probably publish two or even twenty books on memory without breaching its duties to Lorayne, unless, as described in Van Valkenburgh v. Hayden Publishing, the publisher promised to use its best efforts to promote one author's book and allegedly did not act in good faith in publishing books by other authors on the same topic.  Suffice it to say that publishers will seldom sign a "best efforts" clause.

More Resources

Here is one health writer's screed on the hazards of the "no competing works" clause.  And here is a discussion of The Authors Guild's views on the clause.  For a general discussion of the good, the bad, and the ugly in book publishing contracts, see this earlier post.

I suggested that the "no competing works" clause may be the third "nastiest" clauses in a book publishing agreement.  What are number one and number two?  Depending upon the phrasing, of course, they are often the option clause and the grant of rights clause.  More about these extremely important terms in later posts.

Distinguishing the Good, the Bad, and the Ugly in Publishing Agreements

What are some of the best online and ink-on-paper resources regarding publishing agreements?  I'll try to answer that question below, and I will point you to at least one really cool (Columbia University) site.  But, first, here is a bit of general advice on how such resources should be used.

1.  Publishing agreements are often long and complicated legal documents. Some are also filled with traps for the unwary.  These can be treacherous waters, and you need a guide.

2.  Authors often wonder whether, in seeking advice, they should consult a literary agent, a literary property attorney, a book on publishing law, or simply a friend who has signed such an agreement before.  All can be helpful in somewhat different ways.

3.  If you already have an agent, she would be your first and likely best source of information. A good agent knows the ins and outs of the documents (such as standard book publishing agreements) that she deals with on a daily basis and -- crucially -- has an informed view about what a literary work may be worth in the marketplace.  She will also (one hopes) have a web of relationships with acquisition editors, which is, of course, helpful in placing a work and obtaining the best financial terms.  But, for a beginning writer, finding a good agent can sometimes be almost as difficult as finding a publisher.

4.  Agents and lawyers have different areas of expertise.  (Of course, some agents, like the venerable Mort Janklow are lawyers.)  Like an agent, an experienced literary property lawyer can explain your rights and duties under the terms of a publishing agreement (and point out all of the ways in which you are being taken advantage of).  But a literary property lawyer may not have any idea how much money your work could reasonably command, and he may not be much use at all in placing it for you.  On the other hand, a literary property lawyer may be especially helpful in a deal that is somewhat out of the ordinary.  Consequently, an agent may sometimes enlist the services of a literary property attorney, on an "as needed" basis.  Keep in mind that a lawyer who does not regularly do intellectual property work may not be cost-effective.

5.  Sometimes an author is presented with a publishing deal that (1) he has obtained without the assistance of an agent, and (2) he knows to be a fair financial deal.  (An example might be a proposed contract from a university press for an academic work, where there is no reasonable prospect for a large advance or meaningful royalties.)  In that case, it might make sense to consult a lawyer without pulling an agent into the deal.  An agent understandably may want her standard commission in exchange for her advice, even though she has not placed the book; and if there is only, say, a $1,000 advance, she may not be interested in getting involved, even though it is a bird in hand. Of course, if you have access to an agent, it never hurts to ask whether she would be willing to review your contract for a reasonable flat fee.  And, of course, a lawyer's advice will not come cheap either, probably costing you several hundred dollars an hour, depending on where you live.  (That said, reviewing a book contract shouldn't ordinarily take very long.)

6.  Particularly if money is tight, you may want to explore alternative sources of personalized advice on publishing agreements. Members of the Author's Guild can make use of the Guild's contract review service.  The National Writers Union provides a similar service.  Writers who are not members of associations that provide contract advice might be able to obtain help from volunteer lawyers groups, such as those listed in this previous post, albeit they may not be able to assist on a pro bono basis if your income exceeds their set ceilings.

7.  A friend who has experience with publishing agreements can sometimes provide good advice.  He will certainly have your best interests at heart, and (depending on the friend) may have valuable insights.  But a little knowledge is a dangerous thing, and so . . . .

8.  Even if you have an agent or a lawyer or a well-informed friend, you should educate yourself about the legal and business terms of publishing agreements.  There are several online and off-line resources that provide a good place to start.

9.  My current favorite: I recently stumbled across a highly instructive website, maintained by Columbia University, at KeepYourCopyright.org.  It includes this entertaining and instructive feature that gathers together 173 different clauses from contracts with writers and other creative people, and rates each clause as "creator-friendly," "could be worse," "creator-unfriendly," or "incredibly overreaching."  Even more helpfully, the site explains in a paragraph or two the reasons for each rating.  You may find it useful to compare the key clauses posted on this site with the corresponding clauses in any contract you are offered.  It can be illuminating.

10.  The Science Fiction Writers Association has a good introduction to publishing contracts on its website, as well as a few specimen agreements.

11.  There are several practicing lawyers who have posted on their websites useful resource materials concerning publishing agreements.  For example, Lloyd Jassin provides a book contract checklist at his CopyLaw.com website. And here are links to another checklist and an outline of the "nuts and bolts" of publishing contracts -- both from Boston attorney Howard Zaharoff.

12.  Many publishing lawyers own a copy of Perle & Williams on Publishing Law; pertinent portions relating to publishing contracts may now be viewed through Google Books.  Non-lawyers will actually find it quite readable.  Similarly, a useful chapter from Roy Kaufman's Drafting Print and Online Agreements may also be accessed through Google Books. I frequently consult Roy's fine collection of model agreements in my practice.

13.  As to ink-on-paper resources, all of the books discussed in this earlier post have useful things to say about publishing agreements.  If I had to choose just one on this subject, I would select The Writer's Legal Guide, by Tad Crawford and Kay Murray.  Negotiating a Book Contract, by Mark Levine, and The Writer's Legal Companion, by Brad Bunnin and Peter Beren, are also quite good.

14.  So, here is what I would recommend you do before signing your first publishing agreement.  First take a look at the online resources.  Then buy (or borrow) and read the relevant sections of at least one of the law and publishing books.  If you have access to an agent, she should be your first resort for personalized advice.  If you don't have an agent, consider seeking personalized advice from a writers organization or a literary property lawyer before signing any professionally or commercially significant publishing agreement.  Here is a cautionary story about what can happen if you don't.

15. But keep a sense of proportion about it all. What if, for example, you are presented with a proposed agreement for a one-off magazine article that you have only spent a few days writing and that will generate a fee of only a few hundred dollars?  It would be great to have your agent glance through it, if you have one.  It would be great to have your cousin, the intellectual property lawyer, take a look at it for free.  But, realistically, you aren't going to be eager to pay a lawyer to review your contract when your profit margin is slim to the point of anorexia.  That's why it's important for writers to teach themselves what they can about contracts from the myriad of resources available.  

What Can You Do If Your Co-Author Denies You The Credit You Deserve?

A friend of mine, whom I will call Julia, recently co-wrote an article with one of her supervisors at work.  Julia did the lion's share of the research and writing and was told that she would be given a co-author credit when the article appeared in print.  Indeed, a preliminary version of the article (blessed by her supervisor) specifically listed Julia as co-author.  However, between the time she wrote the article and when it was scheduled to appear, she took a job with a competitor.  Lo and behold, when the article was ultimately published, Julia had suddenly become, in Orwell's phrase, an unperson.  Not only was her name omitted from the by-line, but her co-author gave her no credit at all, not even a fleeting mention in a footnote.  Slimy.  

What could she do?  What should she do?  

This is, of course, a woefully common fact pattern.  Credit is, of course, a key consideration in all types of writing, ranging from million-dollar screenplays to scholarly papers where the writer has no expectation of any payment. Regrettably, as is so often the case, there may be a wide disparity between the legal remedies theoretically available, on the one hand, and the practical cost-effective options, on the other.

As to what Julia could do, here are the principal legal remedies that credit-robbed writers have sometimes successfully pursued:

1.  Copyright.  The most direct attack would ordinarily be for Julia to file a lawsuit seeking a declaratory judgment that she is the joint author and co-owner of the copyright and seeking an accounting of any revenues (to which, as co-owner, she would be presumptively entitled to half).

However, in Julia's case, the article was written within the scope of her duties to the company -- i.e., at the direction of her boss, on company time, using company computers, accessing subscription databases, such as Lexis-Nexis, paid for by the company, for the purpose of demonstrating the company's expertise in the subject area.  For these reasons and others, her contribution to the work probably constitutes "work made for hire," as defined in Section 101 of the Copyright Act, belonging to the company.  Indeed, her supervisor's contribution to the article is also probably "work made for hire."  As a result, the company -- rather than either of them individually -- probably owns the copyright.  As a result, my friend could not seek a declaratory judgment for joint ownership of copyright -- much less pursue a claim for copyright infringement.  Indeed, one co-owner of a copyright owner cannot ordinarily sue the other for infringement.

That said, if you are a freelancer or an independent contractor, you, unlike Julia, might have a basis for a declaratory judgment action.  Here, for example, is the Court of Appeals decision in an epic battle by songwriter Shirley Goodman to obtain a declaratory judgment that she was the joint owner of the copyright in the rock and roll classic, "Let the Good Times Roll".

2. False Designation of Origin Under the Lanham Act. Until 2003, my friend could have brought an action under the federal Lanham Act, which prohibits various forms of unfair competition.  For many years, the federal courts held that a contributor to a creative project could sue, under the Lanham Act, for false designation of origin if she was not given proper credit -- or any credit -- for her work.  For example, in Lamothe v. Atlantic Recording Corporation, two members of the band Ratt sued other members of the band, alleging that they had wrongfully been denied credit as co-writers of the band's songs.  An appeals court held that one of the purposes of the Lanham Act is to ensure that "the producer of a good or service receives appropriate recognition and that the consuming public receives full information about the origin of the good."  The Lanham Act even offered the possibility of triple damages if the defendant's conduct was egregious.  But then came the Supreme Court's decision in Dastar v. Twentieth Century Fox Film Corp.  Dastar is a complicated case, which I won't try to summarize here, but the effect of the decision was to slam the door on the use of the Lanham Act in cases of alleged false attribution of creative credit or omission of credit.

3.  Breach of Contract.  After Dastar, Julia's last best hope for a successful lawsuit would probably be a claim for breach of contract.  Not all contracts have to be in the form of signed writings in order to be enforceable.  In many instances, an oral agreement on authorship credit could be enforceable.  Or a contract might be inferred from the circumstances (e.g., the draft with Julia's name on it).  [Don't get me wrong: it's always better from a legal perspective to have a written, signed contract, and some agreements, like "work made for hire" agreements and copyright assignments must be in writing.]  Basically, Julia's claim would boil down to:  you promised to give me credit, you broke your promise, and I was injured as a result.

There are a few other possible legal theories: unjust enrichment, state deceptive trade practices laws, state artist's rights statutes, etc.  But none is especially likely to be more successful than a straight-out breach of contract claim.

But let's get real.  Julia's boss wasn't paid for the article.  So even if she were to win a breach of contract case, she probably would not receive more than token damages.  It's too late for a court to order that her name be included in the by-line of the printed article.  Contract damages on the theory of injury to her professional reputation would be extremely speculative and, as a result, unavailable.  With no real prospect for recovering interesting money damages, Julia could never get a lawyer to take her case on contingency.  If she has to pay a good IP lawyer his hourly rate, she would soon find herself writing four figure checks.  Maybe one of volunteer lawyers for the arts groups discussed in this post would help, but Julia may actually have too large an income to qualify for their services.

So what should Julia do?

The right strategy in these cases varies wildly depending on the dynamics of the writer's situation.  These steps might make sense for Julia, but they might make no sense for you.

1.  Figure out in advance what your objectives are.  In Julia's case, her principal goal in writing the piece was to obtain professional recognition.  It's too late now to get credit in the printed article.  But it might still be feasible to ask that a correction be published in conjunction with the online version of the article, acknowledging her contribution.  This would enable her to point to the article as her own, include it on her resume, etc., so it is a goal that may be worth pursuing.  Your goal, by contrast, may be reasonable financial compensation, another project to work on, an apology, a email you can point to acknowledging your role as co-author, shaming of your co-author, or sweet revenge -- each of which may require a different strategy.

2.  Gather your evidence. Pull together and preserve all emails, drafts, letters, contracts, invoices, etc. relating to the project.  Review whether there is any objective, documentary evidence of the promise of credit.  Or does it come down to your word against your co-author's?

3.  Decide whether you dare to complain. There are times when it's frankly not worth it to fight over credit -- an undistinguished article in an undistinguished publication, no money at stake, the risk of offending someone whose goodwill you depend upon.   For example, if Julia were still working at her old company, making an issue over the denial of credit might have cost her a raise, a promotion, or even her job.  Those considerations might have had a bearing on whether and how she pursued her grievance. But, because she is no longer working under her co-author, she has little to lose in fighting for the credit she deserves.  I am not suggesting that writers should hesitate to complain when they've been screwed; all I am saying is that it's important to maintain a sense of proportion about any dispute.

4.  Decide whom to complain to. Obviously, the first person you will complain to will be your co-author.  But are you willing and able to complain to others?  Keep in mind that if you announce to a third party that your co-author robbed you of proper credit you may run a risk that your co-author might claim you have libeled him.  (If I only tell you that "you're a plagiarist," it isn't libel; but if I make the same statement to your boss and can't back it up, it could be.  See this interesting article on libel claims arising from plagiarism allegations.) If you are planning on complaining to your co-author's boss or the publication's editor or making your grievance known to the public at large (e.g., on your blog or a gripe site), it may be wise to consult a lawyer first.

5.  Decide how to complain. A face-to-face meeting is often the most effective means of resolving any dispute.  Emails and letters have the virtue of giving you time to collect your thoughts and providing a record of what has been said.  Your  complaint should generally make clear (a) your basis for claiming that you were promised a certain form of credit; (b) the way in which the promise was breached; (c) what you want your co-author to do by way of remedy; and (d) the deadline for implementing the remedy.  These are the classic elements of a lawyer's letter.  If you threaten litigation, it should not be an idle threat.

6.  Decide early on how far you are willing to go.  If litigation is a genuine consideration, see that lawyer sooner rather than later. Consider whether there is anything you would be willing to give in return for the remedy you are seeking.

7.  Keep a record of what you've done to pursue your complaint.  Memorializing your conversations and keeping copies of your emails and letters of complaint may be important both offensively and defensively.

8.  Be persistent but never harass.  

9. Mediation? Is there anyone that both you and your co-author would trust to help facilitate a resolution?
10.  Small claims court?  Julie could pursue a claim for breach of contract in small claims court.  In most jurisdictions, individuals need not appear through a lawyer, although corporations must.  You can't recover much money in small claims court; usually the court's jurisdiction is limited to claims of a few thousand dollars. In Julia's case, however, the problem is that she really doesn't have any financial damages, and, even in small claims court, they don't award you money just for being right.

In some contexts, there may be non-judicial means of seeking redress.  In the film industry, the Writers Guild of America and the Directors Guild of America have rules on properly crediting writers and mechanisms for enforcing them.  Universities often have ethics committees that will review disputes over proper crediting of co-authors.  Some scholarly and professional organizations will also investigate accusations of failure to credit and the related offense of plagiarism.

So what should Julia do?  If she had a claim of co-authorship of a hit Broadway musical or a Michael Jackson song, full-fledged litigation might be worth considering. But, with no pot of gold at the end of the rainbow, the most cost-effective result she could reasonably hope for is to argue, bluster, or cajole her co-authors into giving her credit in the online version of the article.  And an apology.

The next time, she will know to document her agreement on co-author credit by an exchange of emails.  On bigger projects, as discussed in this prior post, she should consider entering into a simple collaboration agreement.

[Hat tip to DJF for editorial suggestions.]

Good Fences: When and Why Co-Writers Should Have Collaboration Agreements

Good fences make good neighbors.  If you and another writer are working together on a substantial work, you should consider entering into a collaboration agreement.

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.

Who "Owns" an Interview?

Writers and reporters conduct countless thousands of interviews every day. You might therefore think that it would be well-settled who owns the copyright in the transcriptions or recordings of those interviews, but there is a surprising disparity of opinion on the issue.

It is clear that most interviews are copyright-protected.  As described in this earlier post, an expressive work is subject to copyright protection the moment that it is "fixed in any tangible medium of expression." An interview is "fixed" the instant it is, for example, tape recorded, videotaped, or set down by the interviewer in nearly verbatim notes. (There is the additional requirement that the fixation must be with the "authority" of the author, so a conversation surreptitiously recorded by one participant may not give rise to a copyrighted fixation.)


But who is the copyright owner of the resulting give and take of questions and answers? The interviewer who formulates the questions? (That's basically where the Taggart v. WMAQ case came out, as summarized by the Henderson & Sturm law firm here.) The interviewee who provides the answers, which typically form the core of what readers are really looking to read in interviews? (That seems to be what Suid v. Newsweek implies.)  Or do the interviewee and interviewer create a kind of compilation in which each has an ownership interest in his or her separate contribution? (That appears to be the position taken in Quinto v. Legal Times and in Section 317 of the Compendium II of the Copyright Office Practices.)  Or is the interview a "joint work" where the interviewer and interviewee both have a copyright interest in both the questions and the answers. (That's the default assumption of leading copyright scholars William Patry and Paul Goldstein.)  And, when a work is recorded, does some third party, such as a videographer own the recording? (Very often, yes; see Taggart again.)  Finally, when the interview is conducted as part of the interviewer's or interviewee's employment, the employer(S) may own some or all of the interview as a work for hire.


All of this is seldom of any great practical consequence to writers. In the absence of some agreement to the contrary, if the interviewee knew he was being interviewed, a court would virtually always conclude that, at the very least, the interviewee had implicitly granted the interviewer a non-exclusive license to publish the resulting interview. If someone were to copy the interview, without permission, beyond the amount permitted by fair use, the interviewer and/or the interviewee would have a claim against the copier for infringement. (But see Suid.) And, if you are looking to obtain permission to quote from an interview (again, if you need to use more than fair use allows), then it usually makes sense to contact the interviewer, his or her publisher, or the media entity that employed the interviewer. I do not know of any instances where a interviewee has filed suit contending that the interviewer did not have authority to grant permission to quote from a published interview. (If any reader knows of such a case, please let me know.)


When a problem arises, it is generally not because of a dispute between interviewer and interviewee over copyright ownership, but because the interviewee purports to have placed some express restrictions on how the interview may be used. For example, in Taggart, the defendant television station videotaped a prison interview with a convicted sex offender on the subject of lax regulation at summer camps. The interviewee/plaintiff then claimed that he had requested that the tape not be used in any way in a broadcast.  Fortunately for WMAQ, the court held that the interviewee had no copyright interest in his words, so there was no need to determine whether such a promise was made.

But interviewers should be aware that, if they make explicit promises to interviewees (e.g., with respect to how they will be portrayed or how the interviews will be used), the interviewers -- and/or their employers -- may be held liable for breach of contract (or on a related legal theory, known as promissory estoppel) if those promises are not kept.  That is one of the lessons of Cohen v. Cowles Media, in which a newspaper was ultimately held liable for failure to live up to a promise not to disclose the identity of a confidential news source.

So, writers, you almost certainly own some kind of copyright interest in the interviews you conduct -- unless it is a work for hire for an employer or contracting party.  But ownership of the copyright is not the end of the story in terms of your control over how the interview is used.

In terms of best practices: it's wise, when taping your interviews, to get a statement from your interviewee on the tape that the interviewee is okay with your taping his or her words.  If you and the interviewee have some special understanding with regard to copyright ownership (or other matters relating to the interview), it's best to memorialize that understanding beforehand on tape or in writing (if only in an exchange of emails).  If you have promised something to your interviewee (e.g., the opportunity to review quotations before publication, or that something the interviewee said will be "off the record"), make sure you abide by the promise.

In later posts, I will return to three special problems related to interviews:  the risks of inaccurate quotation; best practices for going on and off the record; and the risks of interviewing someone who has signed a confidentiality agreement, aka the Jeffrey Wigand problem.

Postscript:  Bob Tarantino of the Heenan Blaikie firm in Toronto has written a good piece on this issue under Canadian law and reaches a somewhat different (or, at least, more definite) conclusion than the U.S. cases provide.