COLLABORATIONS FROM A PUBLISHER'S PERSPECTIVE
If a work meets the Copyright Act requirements for a joint work, the authors will be equal co- owners of the copyright in that work. Publishers often assume that it is up to the authors to work out any differences that they may have with respect to the work, and that the failure of the authors to do so will not affect the publisher. However, this is not always the case. A publisher that fails to determine if the authors have agreed on all of the key issues relating to a work may find itself in the middle of a battle between the authors. This can create problems for the publisher, particularly if the book has already been printed and the authors' dispute is over material included in the book, the credits displayed on the cover of the book, or other elements that cannot be changed without reprinting the entire book.
In order to avoid landing in the middle of a dispute between the authors, a publisher should encourage the authors to enter into a collaboration agreementIn order to avoid landing in the middle of a dispute between the authors, a publisher should encourage the authors to enter into a collaboration agreement., and the publisher should obtain a copy of that agreement. In addition, whether the authors are willing to enter into a collaboration agreement or not, the publisher should insure that the following issues are covered in the Publishing Agreement:
- The Agreement must be signed by each author of the work. Each author must represent and warrant that the signing authors are the only authors of the work, and that no other person contributed any material to the work.
- Each author must also agree to jointly and severally indemnify the publisher against any losses in the event any representation or warranty of an author later proves to be untrue. ("Joint and several" means that the publisher can pursue any author for 100% of the publisher's loss resulting from an untrue representation or warranty.)
- The Agreement should specify the division of royalties between or among the authors, and should name the person to whom each author's royalties are to be paid. The Agreement should also confirm that these directions can be changed only by a writing signed by all of the authors.
- The Agreement should address the responsibility that each author will have to review proofs and make changes. In addition, if changes are subject to the authors' approval, the Agreement should state whether one author will be authorized to give approvals or whether approvals must be unanimous.
- If the work is a work of nonfiction, the Agreement should permit one author to make revisions even if the other authors are unwilling or unable to participate.
- The Agreement should list the credit to be given to each author, including the order in which the authors' names are to appear, the size and boldness of type to be used for each author's credit, and special titles or designations, if any, to be given to any author.
- If the Agreement includes an option for the next work, the Agreement should specify whether that option applies only to the next work by all of the authors, or whether it also applies to the next work by any individual author.
Publishers that cover these issues in their publishing agreements will greatly reduce the potential for unwelcome surprises from author collaborations.