Writing Tip of the Week

Ghostwriting Tip #4

A Look at the Legal Side of Things

??(The Obligatory Disclaimer: this article is not legal advice. Before entering into any agreement, consult with your own legal counselor. The following items are concepts for your consideration only. In other words, if something bad goes down, I don’t know you, I never met you, never saw you, and it must have been my twin brother, officer.)

??Always a have contract or letter of agreement.

??Every situation and every relationship is unique, but an author/writer contract should at least cover the list that follows. Always listen to your lawyers, but also listen to your common sense. I’ve seen lawyers so “over-protect” their client that the book involved took significantly longer to produce than necessary. As an author (name on book cover), your book can’t move if it’s lost in the “in” box at your attorney’s office.

??I’ve also seen some writers (name on paycheck) talk themselves out of a good piece of work by springing an over-protective agreement on an innocent and unsuspecting client.

??Keep it simple. ?If you draft your own contract, don’t attempt to use “lawyerese.”?You’re out of your depth and your lack of legal knowledge can hurt you. Or at least make you look pretty damn silly. Be specific. In the event of a legal proceeding, ambiguity works against whoever drafted the agreement. My standard contract is a page and a half long and in plain English.

??Define the book. State the subject matter and a working title.

??Responsibilities. State who does what. Generally, that means the author provides the information and does the fact checking and the writer provides the writing.

??Compensation. State the full compensation and how it is to be paid. Writers should insist on an initial payment before beginning the work.?As Dr. Laura used to advise young doe-eyed girls getting promises of wedding bells from a slobbering hunk of over-zealous testosterone, “Honey, I if you don’t have a ring (contract) and a date (initial payment), you don’t have an engagement.” I get paid in installments as certain portions of the book are completed with a final payment due upon delivery of the final draft.

??Royalties. If the writer is to receive royalties, state how much, how they are to be computed and how they are to be paid. Also, make sure you, the writer, can audit the books. (Don’t hold your breath on that one.) I don’t participate in this form of compensation for a lot of reasons. I want my flat fee paid on time and then I-am-out-of-here.

??Expenses. Be specific. For example, as a writer I don’t charge for a 15-minute run to the post office and a postage stamp just to drop something off to an author. I don’t nickel-and-dime a client for normal business calls. I will charge for hotel/food/travel expenses if I have to invest time on location researching the project. Any materials necessary for the project, such as research materials, should be covered by the author.

??Exclusivity. Author and writer agree to work exclusively with each other on the project. It is reasonable to include a non-compete clause in which the writer agrees not to work on an identical project with another author during production of the book under contract. Be careful with this clause. I worked with a traditional publisher whose exclusivity clause was so restrictive that I’d have been out of the writing business for five years. They backed down on that and I agreed to a one-year none compete clause based on a very tightly worded description that I wrote.

??Deadlines. A reasonable deadline is one year from the initial payment date. A first draft can take six months. Three drafts are usually all that are required. The first draft is often called the “rough” draft and for good reason. The second draft should incorporate the author’s corrections, additions, deletions, specific suggestions, and comments. A third draft should be the final version in which author and writer double-check facts, grammar and spelling, and make any final stylistic changes – were you feeling happy or were you feeling elated and that sort of fine tuning.

??It’s a good idea for writers to include a limit on the drafts. Three is reasonable.

??Credit. The cover credit is strictly up to the author. Often the writer gets some type of credit in the Acknowledgments section and I’m often credited as the writer. “Thanks to Dan who took all my crazy thoughts and….” Sometimes the credit is more obscure, such as a thank you for an unspecified “contribution.” In most cases, this isn’t a deal-breaker with me. The name I and most writers are concerned with is the one appearing on the paycheck.

??Note, however, that if you are an author or if you are a writer working with an author on a budget, cover credit can be a negotiable item. Getting an “As told to” or a “With….” can be a valuable marketing tool in securing new ghostwriting projects.

??Copyright. In virtually all cases, the author engages the writer in a “work made for hire” and therefore retains copyright.

??Agents/Attorneys. If they’re involved, state who and define their responsibilities and limits.

??Premature termination of the agreement. State what happens to the project and project funds and payments should either party back out of the agreement before completion. A kill fee paid by the author to the writer if the author cancels the project is reasonable and a common practice.

??Arbitration. It’s a far better option than going to court. If you and your writer are residents of different states, note the state in which any arbitration will take place.

??A co-author I worked with a few years ago who was tasked with research and fact checking claimed that he had written the book, too. This false claim came in a letter from a copyright attorney representing my co-author and the organization that was the subject of the book. ?I suggested we put the matter to arbitration – you put your evidence on one side of the table and I’ll put mine on the other and we’ll let an independent judge decide. Faced with backing up his words in a legal environment, he backed down. (This event is detailed in my business book on writing How Find Me Lost Me.) ?

??Moral of the story: consult your attorney, draft a contract, keep your records, and maintain your rights. That will keep you on the legal side of things.

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