Written by attorney Gordon Philip Firemark

Why every writing team should have a written collaboration agreement. (part I)

Although written for playwrights, composers and lyricists writing for the stage, the principles discussed here are equally applicable to writers in any medium.

What is a collaboration agreement?

Any time two or more people join together to create a work such as a play, musical, song, screenplay, or any other work of art or authorship, they are considered collaborators. A collaboration Agreement is a contract between the collaborators that sets forth the terms and conditions of their work together, the division of responsibilities, disposition of the finished product, and sharing of revenues derived from the product’s exploitation.

What terms does a collaboration agreement typically contain?

The Fundamental terms of any collaboration agreement are typically centered around the following:]

A. Copyright ownership of the finished work.

In many cases, a collaborative work will be considered a “Joint Work" under copyright law, and will result in an equal split of ownership among the authors unless a different split is set forth in the agreement. Some special cases arise, however in the music and theatre industries.

In the case, for example, of a song, written by a composer and a lyricist, the collaboration agreement may provide for varying percentage participations if only the music or only the lyric is used.

Even more complicated is the case of a stage musical, where the music and lyrics are combined with the book/libretto containing the action and dialogue of the show. What if the musical is adapted as a straight-play? Do the lyricist and composer share in the rights fees? What if the songs are released on a cast album, or later become popular and are recorded by others? Does the bookwriter share in the record royalties, performing rights royalties, other revenues from exploitation of the songs?

Why do we need a collaboration agreement?

In the absence of a collaboration agreement, the parties may or may not be considered partners. The work they create may or may not be considered a “joint work", and thus ownership and control of the disposition of the work called into question. While it is true that these issues tend only to arise in situations where the team has broken up, or is in the process of doing so, the existence of a collaboration agreement can be useful in managing the parties’ separation. In some respects, a collaboration agreement is the creative team’s equivalent of a prenuptial agreement. But in many cases the collaboration agreement can be much much more.

By negotiating the terms of the collaboration agreement at the outset of the work, the parties can uncover differences in their expectations, and avoid problems that might otherwise arise later. In the absence of a collaboration agreement, the parties’ efforts may be lost if there’s no meeting of the minds, and the project may simply wind up being abandoned… or mired in litigation. Obviously, it is important to work with a lawyer to craft a workable contract that’s tailored to your team’s specific circumstances.

B. Control over the creative and business decisions relating to the finished work.

Again, typically the parties intend to share control equally. In many cases, however this requires unanimity for decision making. This being the case, a party might effectively wield “veto" power, and hamper the exploitation of the work. For this reason, it’s important to establish some guidelines for voting, and a method to break ties, when the parties don’t agree.

In many cases, the voting mechanism is simple… one person, one vote. But what if the book of a musical is written by one person, and the music AND lyrics written by another. The composer/lyricist might be justified in feeling he/she deserves one vote for each of those elements.

The breaking of a tie is sometimes handled by a neutral 3rd party agreed upon by the collaborators. The collaborators may feel that different neutrals should be appointed for different types of matters. Creative issues might be decided by a director or writer, while business issues could be determined by an agent, lawyer or producer.

Whatever the mechanism, it’s important that the parties agree upon the specifics at the outset of the relationship, since once a disagreement arises, it may be impossible to agree on anything, including who should be the arbiter of the dispute.

C. Merger

The merger clause is somewhat unique to the theatre industry, but there’s no real reason it can’t be applied in other cases as well.

“Merger" refers to the parties agreement on the specific point (in time) at which the various creative contributions are deemed to be a unified, single work.

Generally, a merger clause provides that , Up until the merger, any collaborator may withdraw or be removed, and may (sometimes) take his/her contribution out of the work. Once merger occurs, however, the work is final, frozen, and may not be altered without the mutual consent of all parties concerned. (note, however that directors and producers may have other thoughts.. the subject of another article).

The merger clause will set out a specific time or event that will trigger merger. It is critical that the collaborators select this time carefully. There is no legal definition for when merger occurs. (Copyright law considers the work a Joint Work very early-on… at the time of creation… but only if the parties intended the work to be a joint work)

Some examples of events/times chosen for merger are: The first press preview of the show; the final technical rehearsal; the official opening at a particular venue or level of production; or a specific date. Each of these has its benefits and its drawbacks, and your entertainment lawyer will help you determine the best approach. Care should be taken to preserve some flexibility for when a show’s reviews indicate a need for revisions. It’s also wise to provide for circumstances where significant elements are “cut" from a show after the merger date. Should a song, once cut from the show, remain property of the writing team as a whole, or should ownership revert to the composer/lyricist?

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