Ask Author Law

The trouble with "standard" contracts

November 10, 2014

Tags: Author Law, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Collaboration Agreement, Writing, IP Law, Intellectual Property

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: Do you have a standard collaboration agreement for me to use? I’m going to be ghostwriting a book for a well-known doctor.

A: I am often asked to provide a “standard” contract for one purpose or another. Sometimes I’m asked to look over a particular clause and ask how it can be adjusted to suit the writer’s needs. My reply in these cases is the same – there’s no such thing as a standard contract. Each contract is an agreement between two parties that is enforceable by a court and it’s essential that it reflect the reality of the relationship between those parties.

Any contract must be evaluated as a unified whole. It’s a dangerous practice to tinker with one part of a contract without making sure that other parts aren’t affected or that other parts don’t contradict the changed clause. For this reason, I always insist on seeing the entire contract before commenting on any part of it.

As to the adaptation of a “standard” contract to an individual situation, I am reluctant to recommend this practice to writers, especially with collaboration agreements that present particularly challenging legal complexities. In my experience, collaboration agreements can cause more problems than any other type of publishing contract. They should be carefully drafted so that they reflect the true intentions of the parties and use legally correct language. Legally correct language is especially important in the area of copyright ownership and transfer, an issue that often comes up in collaborative projects.

There’s nothing wrong with saving effort and money by starting out with a form agreement or attempting to adapt someone else’s contract. But it would be a smart investment to have your final draft reviewed by a capable attorney before signing it. A modest legal fee upfront beats paying large fees later to untangle the mess that a do-it-yourself-contract can create.

To paraphrase an old saying: “The writer who acts as her own lawyer has a fool for a client.”