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Lawyer: Rosy textbook co-author prospects can sour

Textbook PublishingAlthough co-authorship has many advantages, there are also meaningful risks that no one likes to contemplate at the outset of the relationship, said Stephen Gillen, an attorney with Wood, Herron & Evans, L.L.P. “There are many stresses and many opportunities for the relationship to sour and much temptation at finger pointing,” he said. “While most collaborations/co-authorships end the way they start — on a distinctly positive note, when things go bad, they go very, very bad.” Gillen said co-author disputes are among the most rancorous disputes he deals with: “The strategy most often in evidence is one borrowed from the Cold War — assured mutual destruction.”

The stakes are high, he said, and there is more at risk than authors may realize until forced to confront the consequences. By the time authors get to an attorney with a problem, he said, “it is highly unlikely that the relationship can be repaired or that the dissolution will be friendly. They have all the earmarks of a custody dispute, except custody disputes have a powerful moderating influence — the best interests of the child — which is nowhere in evidence in a dispute among coauthors.”

The principal problem when co-authors cannot continue working together, said Gillen, arises as a result of the default ownership rules under copyright law, which says the working manuscript is generally jointly authored and jointly owned. This means each joint author:

  • Has an undivided proportional interest in the whole, not separate ownership of their individual contributions.
  • Can finish or exploit the jointly owned manuscript, but only on a non-exclusive basis because of the rights of the other. This makes the manuscript essentially unmarketable as far as most publishers are concerned.
  • Has a duty to account to the other for any profits realized and to share those profits according to their respective ownership interests.

If the project had already been signed by a publisher before the relationship deteriorated, said Gillen, the publishing contract “will generally give the publisher the ability to unilaterally dictate what will happen to the project and the opportunity to use the breach of one co-author to leverage concessions from the other.” There also may be, he said, advances from the publisher that will now have to be repaid, an obligation to cover for the non-performance of a co-author and liability for a co-author’s defaults or breaches of the reps and warranties.