The first thing you should write before entering into a co-authoring relationship is a collaboration agreement, said Stephen Gillen, an attorney with Wood, Herron & Evans, L.L.P.

“Do it before you write the manuscript, before you sign the publisher’s contract, before you write the sample chapters, before you write the outline, and before you write the proposal,” he said. “Do it first. If it’s too late to do it first, do it NOW! If you think you don’t need one, you’re wrong. By the time you realize you do, it’s probably too late.”

There are a couple of primary reasons why a collaboration agreement is needed before authors begin a co-authoring relationship, said Gillen. One of those reasons is that the default rules of U.S. Copyright Law state that a “joint work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole,” and “The authors of a joint work are co-owners of a copyright in the work.” What this means, he said, it that as co-owners, each author has an undivided proportionate interest in the whole work.

These default rules of U.S. Copyright Law present a few problems, said Gillen:

• Absent a contrary agreement, all joint authors share equally in ownership — even if it is clear that their respective contributions are not equal.
• Any joint owner may, without the consent of the other joint owners, grant a non-exclusive license in the work to third parties, but one joint owner cannot transfer ownership of the work or grant any exclusive license without the participation of all other joint owners.
• Each joint author must account to the others and share with them the profits from any commercial exploitation of the work.

The second reason why a collaboration agreement is needed lies in the typical provisions of a publishing contract, he said, which state: “If there are multiple authors for this Agreement, all are collectively referred to as ‘Author’ and the rights, obligations, and liabilities of the Author are joint and several’: ‘The publisher may exercise any or all of its rights and remedies with respect to the authors individually or collectively’; and ‘If any author does not perform the obligations required, the Publisher shall have the right to proceed with the other author(s) without obligation to the non-performing author.”

Said Gillen: “These provisions have implications for representations and warranties; indemnification; royalties, advances, and grants; recovery of advances, grants and other charges; allocation of workload; and participation in revisions. The publishing contract protects the publisher, NOT the co-authors.”

Publishers do not have to treat co-authors equally or equitably, he said: “Publishing companies act through their editors and editors are not above favoring one author over the other. The publishing contract does nothing to prevent this and often fosters it.”

Gillen outlines the items that should go into a collaboration agreement:

• What will each author do and when?
• How will the work product be evaluated?
• How will proceeds be shared?
• Who will negotiate with the publisher?
• How will you break a tie?
• What is the exit strategy?