After a recent review of a collaboration agreement for a ghostwriter, it struck me that the phrase “writer beware” has lost none of its relevance in the current marketplace.
In the agreement I reviewed, compensation was a third to one-half of what it should have been for any writer who agrees to prepare a 250 page book with index, table of contents, and acknowledgements. While inadequate compensation is a cause for complaint, something else alarmed me more: three provisions that threatened to further diminish the writer’s already de minimis compensation. These clauses, if any one or more was enforced, would have only one result—to increase the hiring party’s profit margin at the expense of the writer performing the work. Get help from an expert contact lawyer.
Let’s take a look at these onerous provisions and how to avoid them. Note that we’ll refer to the collaboration agreement where I found these provisions as the “Agency Contract” and the hiring party that wrote the contract as the “Agency.”
- First, what is the relationship between how and when you are compensated and your opportunity to terminate the agreement?
Good collaboration agreements divide your writing tasks and total compensation into performance and payment stages, i.e., you receive installment payments for segments of completed and approved work product. Depending on the length of the project, there should be three to five such segments.
If, after performing some portion of the project, you no longer want to work with the hiring party or you have to terminate for personal reasons, the termination provision should allow you to retain whatever you were paid or will be paid for completed and approved segments of the work. The hiring party becomes the copyright owner of your approved work product and may engage another writer to complete the project. This is a fair and typical exchange of your labor and intellectual property rights for compensation.
The Agency Contract I reviewed defies that fair exchange. Although it provides for periodic installment payments, if the writer terminates at any time before the project is completed, the writer must reimburse the Agency whatever the Agency paid the writer. Obviously, in spite of the hours you’ve spent, you may earn nothing.
As unfair as that is, the Agency’s exploitation of the writer does not stop there. Although the writer is required to reimburse the Agency, the Agency is not required to cease all use of what the writer created. Without any language to prohibit the Agency from claiming copyright ownership in the writer’s work, the Agency becomes the legal owner of whatever work the writer previously delivered—all at the writer’s expense and at no cost to the Agency.
If your collaboration agreement says that you must return monies after delivering work product that the hiring party accepted, challenge that proposition at once. Never agree to reimburse payments made or to relinquish your right to future payments for previously accepted work. Any demand on you to do so is unconscionable.
- Second, when is the hiring party required to pay you?
In a balanced collaboration agreement, your installment payments are due within so many days of a hiring party’s approval of your delivered work product. (We recognize that you may have had to perform one or two rounds of edits prior to approval.) Usually, the writer will receive an installment payment within thirty days or less of the hiring party’s approval of the delivered materials.
Not so in the Agency Contract. Although the Agency makes payment to the writer-for-hire “after” the Agency approves of the deliverable, “after” is no more than a desert mirage. The contract provides no measurable time period or due date by which the Agency is to pay the Writer. As a result, you could be paid whenever the Agency chooses to pay you. Worse, the Agency could pay you for any one stage “after” you complete still other stages of the work or delay until you complete the entire project.
Remember our first warning about this Agency Contract—that it penalizes the writer by demanding reimbursement of earned monies? Let’s suppose that you refuse to begin work on the next stage of the project until you are paid for the prior stage. The Agency might demand that you either continue to work or terminate. If you didn’t understand what was in the Agency contract, you might terminate and believe you were still entitled to payment. In fact, as we’ve already shown, you waived that right when you signed the agreement.
No matter how little your total project compensation might be, inadequate compensation does not justify delayed or denied compensation for completed and approved work product. Be sure your contract confirms that you are paid within a specific number of days following the hiring party’s approval of every segment of your work.
- Third, how many rounds of edits/revisions are you expected to perform?
When it comes to the exchange of money for labor, the Agency’s approach to editing and revising work product is particularly egregious.
Most collaboration agreements require you to devote some time to editing the draft you write. Following a mark-up by the hiring party or an editor, a chapter or complete manuscript could be returned to you for revisions. Many writers advocate two rounds of edits per chapter or for the completed work, period. Others may allow for two rounds of edits for each chapter or segment and one added round of edits for the completed manuscript.
As usual, the Agency Contract offers still another contractual sleight of hand: there is no limit on the writer’s editing obligation. Instead, you are expected to make a “reasonable number of revisions.” And how, exactly, does one measure what is reasonable? A reasonable number could be two or one hundred depending on what the writer or the hiring party considers sufficient.
And the impact on you? An unspecified number of editing rounds threatens to decrease your compensation by increasing the working hours you originally and “reasonably” expected to invest in the work product. Whether or not it turns a three-month project into six months, you are likely to work more hours for less money per hour.
It could also have an impact on how long you have to wait for installment payments. Edits often precede work product approval and the hiring party’s approval triggers payment. What if the collaboration agreement is enforceable for as long as it takes to complete the project? Imagine working with a hiring party who takes a month to respond to each round of revisions and can request as many rounds as they want. Few gig economy workers can accommodate that kind of financial uncertainty.
Bottom line, whatever number of editing rounds you choose to include in your contract price, request additional payment for any rounds exceeding those agreed to under the contract.
Author’s Note. We have reviewed just three of many ways to exploit a writer-for-hire in a collaboration agreement. Whether you’re a newbie or veteran, a ghostwriter or a co-writer, be sure to challenge these clauses and any others where the devil may be hiding in the legalese.