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Sunday, July 20, 2008

Writers-for-Hire

By Richard Curtis

If one were to compose a Bill of Rights for authors, ownership of copyright to their works would certainly be close to the top of the list. We hold self-evident the truth that if a person produces an original book-length work, he or she is entitled to proprietorship under the law, and to full benefit of its commercial exploitation.

Yet, it has not always been so. The piracy of literature by printers, publishers, and booksellers has been common practice throughout the world from the dawn of the printed word, and was prevalent in this country until well into the present century. Until the establishment of the first International Copyright Convention in 1891 and its refinement after World War II, respect for the sanctity of copyright was largely a matter of gentleman's agreements based strictly on self-interest—don't steal from me and I won't steal from you. There are still vast areas of our globe where publishers think nothing of stealing and distributing works of literature from authors and publishers of law-abiding countries, and the emergence of electronic and online media have made it a big business. Piracy of books, videotapes, music, and other intellectual property in some foreign countries is tolerated, condoned or even sponsored and supported by their governments.

Lest you become too smug that such barbarities cannot happen here, I am compelled to report my observation that the appropriation of authors' copyrights by publishers and book packagers seems to be on the upswing. Nothing so gross as piracy, mind you. More, I would say, like extortion. But the effect is the same: the deprivation of authors' rights to enjoy the fruits of their labors. The fruits of an author's labors include such bounties as royalties on copies of books sold, participation in reprint income, and revenue deriving from the exploitation of serial, translation, dramatization, electronic, and other subsidiary rights. Not everyone shares the conviction that the enjoyment of these monies is a natural and God-given right, however. Indeed, not everybody behaves as if the enjoyment of these monies is protected by statutory law.

The engagement of writers for flat fees falls into a category of employment known as "work-for-hire." Work-for-hire is a doctrine defining the relationship between a copyright owner and a writer. Note that the owner may or may not be an author; he, she, they, or it may be a corporation (like a movie studio or television production company), a syndicate of investors, or an individual who is not a writer. These entities hire writers to perform a service in pretty much the same way a homeowner hires a cabinetmaker, a painter, or a gardener, except that in this case the task is writing a text for the "boss"—the creator or owner of the idea. The owner is then free to exploit the text in any way he desires with no further obligation to the author.

Some provisions of the 1976 Copyright Act attempt to define the work-for-hire concept, but they do not do so very clearly and have left the door open to unfair exploitation of authors.

I hasten to make clear that all work-for-hire is by no means exploitive. Authors sometimes voluntarily sell all rights to their copyrighted work. And there are numerous situations in which work-for-hire may be considered reasonable and acceptable by normal ethical standards; for instance, the engagement of writers to do articles for an encyclopedia. The copyright holder of the total work is the publisher, and because it would be impractical and uneconomical to pay a royalty to each contributor, the normal arrangement is a one-time fee. As long as the fee pays for the time and effort, the author is usually content, particularly if he or she gets byline credit, for a contribution to an encyclopedia bears great prestige that helps the author endure the low wages.

Another application of the work-for-hire concept that most of us accept unquestioningly is ghostwriting. Authorities or celebrities who cannot write well or are too busy to write their own books engage writers to draft books for them. Although the principal author may agree to share some of the proceeds of the book with his ghost, the principal is the sole signatory of the contract with the publisher, thus making him the copyright owner. He then signs a separate agreement with the ghost, removing that person from claim to copyright and direct participation in revenue generated by publication of the book. Occasionally, what may have seemed a fair fee at the time it was negotiated with the ghostwriter may not seem so if the work demanded of him turns out to be excessive, or if the book becomes a runaway best-seller. Under ordinary circumstances, however, the ghostwriter accepts his lot as a worker-for-hire, and may at least secure more work for himself by telling publishers, "That book was actually written by me."

If all this seems a bit remote to you, let me point out that many garden variety authors employ other writers on a work-for-hire basis. Take the creator of a popular fictional series who, growing bored with his characters or too busy with other projects to turn out new books in his series, farms them out to other authors. He signs contracts with his publisher, then negotiates separate agreements with ghostwriters to produce first drafts or even final ones for him, which he passes off as his own. In some instances the publisher is aware of the existence of these subcontractors, in others it is not. But seldom is the subcontractor a signatory to the publication contract, and though he may receive a piece of the action as part of his deal with the principal author, it is not strictly a royalty in the sense we usually understand it, and of course the ghost forfeits any claim to copyright ownership.

Although I'm not at liberty to detail the many instances I know of authors who farm their work out, fans of those authors might be shocked to learn that their favorite books are produced, as it were, in a shop. There is in particular one best-selling male action-adventure series whose creator, to my knowledge, no longer writes his own books at all. In conjunction with his publisher, he puts the production of his books on an assembly line basis. A series "bible" describing the characters and general story line of the series is issued to writers, who submit plots for the approval of the creator and/or the publisher. Upon approval, a contract is issued to the writers. At first glance it looks like a typical publishing contract, but closer scrutiny reveals that the copyright is owned by a corporate entity; the advance is not called an advance (it's simply called a "sum"); and the royalty is not called a royalty (it's called a "bonus payment") and is expressed in cents rather than as a percentage of the list price of the book, presumably to further remove the writer-for-hire's labor from any association with creation of the work. I estimate the payments to the writer-for-hire to be approximately one-fourth to one-third of the traditional royalty that might normally accrue to him if he were the original creator of the book. I assume that the balance of the royalty is shared between the originator and the publisher.

In the above example, the originator of the series is in effect a packager. Packagers, as I have stated elsewhere, are sui generis. They are not exactly authors even though they frequently create the ideas and story lines for books; they are not exactly agents even though they take a kind of commission for their roles as go-betweens among authors and publishers; and they are not exactly publishers even though they buy the services of authors.

I've never been comfortable with packagers either in theory or in practice. Packagers are both buyers and sellers at the same time (so that "broker" might be the most apposite synonym), and there is inherent in their function the potential for mischief, abuse, and downright dishonesty. Some book packagers are as honest, open in their business dealings, and caring about authors as is possible under the circumstances. But a number are little short of rapacious, hiring authors for the smallest fees they can get away with and paying them no royalty or participation in subsidiary rights revenue whatsoever, while selling their books to publishers for very large multiples of what they pay the writers for them.

Furthermore, while these packagers manage to sell publishers on the concepts of books or series, they often contribute little or nothing by way of editorial input or guidance. An author is given the most general ideas ("How about a Dirty Dozen set in Bosnia!"), then is required to create characters, situations, and plots—create, in short, the entire series. The packager's argument is that were it not for his initiative in creating an idea and selling it to a publisher, writers would have no work and no pay. As the level of pay is all too frequently subsistence, the cause for heartfelt gratitude frequently escapes the writer-for-hire.

Because many publishers don't particularly care where their product comes from as long as it is good, is delivered on time, and is not too expensive, they provide fertile ground in which packagers can flourish. That is one key reason for my concern that the packaging phenomenon, with all the implications of author exploitation that it represents, is on the rise. The other reason is that some publishers are taking their cues from packagers and doing the same thing. They cook up series ideas in their offices, produce a series bible, then hire writers to write books in the series under a house pseudonym. Because such publishers maintain that they created the series, they have been scaling back advances, royalties, and author participation in subsidiary rights for those books, and their contracts are, in fact if not in actual language, work-for-hire agreements. In many instances, the publishers offer flat fees to authors interested in writing books for publisher-originated series, take it or leave it.

Of more recent vintage, but a phenomenon that will grow to major proportions as time goes by, is the use of writers-for-hire for electronic and multimedia works, where text is but one element along with still and moving pictures, music, animation, etc. And the exploitation without compensation of electronic versions of stories and articles for magazines has become a source of bitter warfare between writers groups and newspaper and magazine publishers.

You might infer that I refuse to do business with the more exploitative of packagers and publishers, but that is not the case. Some of my clients are hungry, and occasionally some are desperate for any kind of work, and though I may judge certain packagers and publisher-packagers harshly, practically speaking I don't feel it is fair for me to turn down, out of hand, work for clients who might be grateful for a few thousand dollars and a job that gets them through a financial squeeze or crisis. It's easy for an agent to tell an author, "I'd rather see you starve than accept that deal"; it's not so easy for an author to agree with him. If, after a writer has weighed all aspects of a work-for-hire deal, he or she still wants the job, then the only thing an agent can do is negotiate what few safeguards he can, such as making sure the writer is not legally liable for changes or additions to his text rendered by the packager or publisher. The quality of help an agent can render in these cases is the equivalent of telling the tenant of an avaricious landlord, "You have two choices: sign the lease or don't sign the lease."

Because packagers prosper from a supply-and-demand dynamic that is clearly—at this time, anyway—in their favor, there is little that individual authors or agents can do to roll conditions back. It must be done through collective action. Sad to say, authors and literary agents are scarcely closer to effective collective activism than they were when I started advocating it years ago. So if you've been holding your breath, let it out.

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It's reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.

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