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.

Sounding the Trumpet for Fair Use Quotation and Deploring "Design Around Scholarship"

As touched on in a previous previous post, I have recently become familiar with the work of Robert Spoo, who has had a multi-faceted career as a practicing litigator, law school professor, and English literature professor.  He was for a good while the editor of the James Joyce Quarterly and was one of the attorneys who represented Carol Shloss in her long copyright battle with the James Joyce Estate. Spoo has criticized what he calls the “Era of Forbidden Quotation,” in which scholarly works are legally sanitized to avoid conflicts with copyright owners:

By trimming quotations to the bone or forgoing them altogether, by deleting all unpublished material or paraphrasing it nearly out of existence, by using public-domain editions in place of better, copyrighted ones, academic authors are practicing the art of designing around copyrights. . . . . Design-around scholarship often amounts to a kind of perverse self-denial—perverse because not warranted by the porous nature of copyrights.

Robert Spoo, "Copyrights and ‘Design-Around’ Scholarship," James Joyce Quarterly 44 (2007): 566-67, 578 (available through a MUSE institutional subscription).  As Spoo argues, design-arounds come at a price—often in the form of “timid, bloodless paraphrase.”  He also urges, correctly, that the law does not by any means require the purging of all quotation when permission from a copyright owner cannot be obtained or is expressly refused.

That said, there are times when it is only prudent to cut back, as artfully as possible, on the amount of quotation in order to bring a scholarly (or popular) work safely within the bounds of fair use.  I will return to the timing and strategy of “quotation trimming” in a later post.