Do collaborative writers need a pre-nuptial agreement?

Collaborative writing partnership –  just like a marriage (but without the coat tails and silly hats)

It rarely does one good to be pessimistic but the tangled and seemingly endless relationship that is collaborative writing is even more complicated than I might have suggested in other blogs. The road to publishing success is not evenly paved and there are legal, technical and even moral potholes to negotiate.
I’m not going to write at length about how to get published. For one, I would tend to describe myself as a sort-of published author, only a bit professional and far from full-time. Secondly, there are oodles of books out there about how to get published and I am given to understand that some of them are reasonably priced and actually useful.
If collaborators are going to seek publication through traditional channels then the collaboration is no longer between writers but between writers and agents (perhaps more than one!) and publishers. The number of people who want to stick their oar in, extract their own pound of flesh, etc (insert your own metaphor or euphemism in here) will shoot up. I can only picture the process of guiding all those people to the publication of your book as being like herding cats.
Perhaps that might all go swimmingly but there are other questions that need to be answered. Foremost of those questions is ‘whose book is it?’
No, it’s not a silly question. Dear collaborative writer, it’s your book but in what sense is it your book? Do you own it? Of course, you do. But how much of it do you own and in what way? Do you own all of it with your collaborator or do you own 50% of the complete thing? Do you own the bits you wrote? Or the bits you helped write?
Intellectual property and copyright law protects your rights as the authors of your work across the globe. As a collaborative pair or team, the law will identify you as the authors and owners of your work and protect you against who might copy, plagiarise or fraudulently use your material. However, things become tricky if the disagreements over the work are between the partners within the collaboration.
A writing collaboration is a bit like marriage but without the icky emotional stuff and exchange of bodily fluids. A collaboration is a relationship, it involves some give and take, a lot of time and, if you’re lucky, you might create something wonderful between you. But, also like a marriage, it’s only great as long as everyone is happy with it and wants to stick with it. When a collaboration fails, it (like some marriages) can result in open warfare and some serious casualties.

What if your collaboration produces that wonderful hoped-for novel but then the partnership crashes and burns due to irreconcilable personal differences? Whose novel is it now? Who decides if it should be published and how? Do all contributors have free and equal use of the material, like some seventies rock band, broken up and touring as separate entities and each claiming to be the real and original? Do the contributors each have personal control over the pieces they wrote and the freedom to develop something new from those fragments? Or is the whole novel now locked down and inaccessible, only publishable if all collaborators agree?
To be honest, I researched this aspect and read a lot of interesting articles before I realised… I am not an intellectual property rights lawyer and I would be an idiot to try to provide some definite answers here. I don’t want you suing or hexing me because of my half-arsed attempts at legal advice. Besides, there are oodles of intellectual property rights lawyers out there and I am given to understand that some of them are reasonably priced and actually useful.
Collaborative writing is like a marriage (a bit) and there’s one aspect of marriage that collaborators would do well to take on board: the pre-nuptial agreement. Now, in terms of marriage, we Brits don’t tend to go in for anything as sensible or as cynical as pre-nuptial agreements but even Brit writers would be able to see the sense in signing up to some writerly equivalent.
The writer’s pre-nup doesn’t have to focus on anything as pessimistic as what will happen in the event of an acrimonious split but can at least lay down where all parties stand in relation to the things that matter. Who owns the novel? How will any profits be split? What markets will the novel be sold to and what rights are the collaborators willing to sell? What will happen if the novel is optioned for a TV series or movie? What commitments to post-writing publicity and promotion are the collaborators willing to make?
I am not suggesting that your pre-nuptial agreement be a legal one, unless you want to contract one of those reasonably priced intellectual property rights lawyers, but it would do all collaborators a world of good to sit down together and work out what they’re going to put into the relationship, what they aim to get out of it and how they’re going to achieve those aims. Potential areas of conflict or disagreement might be flagged up long before they become a reality.

Posted in 2012, Writing Tagged with: , ,