Shared intellectual property

[Kathryn Scannell]

Apologies if this is a little outside the topic.

Let me preface this by saying that we're not talking about fan fic. This question concerns original settings and characters, jointly created by two or more people.

There are quite a lot of cases out there of author's writing in each other's settings, ranging from shared world anthologies like Robert Asprin's Thieve's World to simple cases someone granting another author permission to play in their sandbox, as we've seen recently in the case of Steven Erikson's Malazan Empire setting. So it seems as if this must come up at least somewhat regularly.

It seems pretty clear in the case of a book co-written by two or more authors that they hold joint copyright and share the rights to the work.

It gets a bit cloudier when there's no co-writing involved. Another member of my local writing group and I have a shared setting and some shared characters which we're both using in stories, but she's not writing any of the stories that have my name on them, and vice versa.

My current publisher has been satisfied with a simple email from both of us acknowledging the shared setting and stating that we've each given the other permission to use it. However I'm wondering if there are industry standard agreements that cover this sort of situation, and where I might look for information on those.

[Kris McConville]

hey Kathryn,

Sorry it took so long to get back to you -- I was working on the piracy article.

Okay - no it's okay to ask this question - actually it is a very interesting situation. Forgive me for being a lawyer but I have to bounce back and answer with a couple of questions to make sure I'm understanding the question correctly. he he

You said another member of your local writing group and you have emails back and forth and that your 'current publisher' is find with that as far as acknowledging the permission you each gave each other.

This leads me to ask:
1. Is your writing friend also working with a publisher yet or not?
2. Is the current publisher the one that will be publishing your book that has the common setting and characters?
3. Which one of you is likely to finish and publish first?

The reason these answers are important is to see who will file for a copyright first. Since whoever files first would have a copyright to that setting and the characters. :-)

BTW I think you are talking about doing a collaboration agreement - but I'll know more from your answers...

[Kathryn Scannell]

1. Is your writing friend also working with a publisher yet or not?


Not with respect to anything in the shared setting. She has stories in other settings published with the publisher I mentioned in my initial statement of the question.



2. Is the current publisher the one that will be publishing your book that has the common setting and characters?


The current publisher has accepted my work in the shared setting. My friend had previously published work with them in a different setting. I informed them of the shared nature of the setting and they requested an email from my friend explicitly stating that the setting was used with her permission as sufficient to cover them legally.



3. Which one of you is likely to finish and publish first?



That would be me. I currently have 3 short stories, a novel coming out at the end of April, and another short due out in Dec. The novel has already run as a serial, but no ISBN was issued for that publication.

My friend has a trilogy substantially complete - it needs another round of line edits, and then she will be looking for publishers. Her story line falls outside the subject range our current shared publisher normally considers.

In a nutshell what we want to say is that we share the right to use the setting, don't expect to get royalties from each other's books, unless we actually write and submit jointly, and probably something about the rights to the setting and anything written in that setting passing to the survivor if something happens to one of us.

We're good friends, and have no reason to expect any issues, but as soon as 3rd parties potentially get involved, it seems like a good idea to protect ourselves by specifying things. I'm trying to figure out where to start looking at options for that.

[Kris McConville]

Okay well I would recommend (again this is just my opinion and should not be used as legal advice) that you look into a 'collaboration' agreement because there should be something in writing even if you are the best of friends now. If your book sells and hers doesn't or vice versa there may be issues down the road... A collaboration agreement between writers is a device for deciding who owns the product of creative work by two or more people. Each collaborator is what the law calls a 'tenant-in-common' of the work. Each collaborator can independently copyright the work. As tenants-in-common, each collaborator owes the other certain obligations of trust. What you said about not expecting to get royalties from each other's books - that should be in a clause in the agreement that you clearly states that you opt out of any royalties that might be due you. You're also right about wht happens when one of you dies. There should definitely be a clause stating that the survivor gets complete control over the settings and characters etc.

The one thing that does concern me with your answers to the questions is that your friends story line falls outside of the subject range of your current shared publisher -- so if she goes with another publisher (which is sounds like she'll have to) then that publisher might be leery of publishing her work without some type of written agreement. Right now your same publisher is fine with just an email but for your friend to publish with another publisher -- they might not be happy with just the email. You definitely need an agreement that specifies everything imaginable...

Since you'll publish first, then your book is copyrighted first and you technically own your story which includes the setting and characters. Therefore, in her case, you might have to 'give her formal permission' to use the characters in order to satisfy her eventual publisher. This would be a similar situation to some writer who wants to use someone's copyrighted material in their book. They have to get permission in writing. With you gals it sounds like the assignment would be a formality but still something that should be done depending on what the two different publishers want.

But my advice is to start looking at collaboration agreements and involve your publisher in the process so that everything is done legally..

Hope this helps.. let me know if I confused you more..

[Kathryn Scannell]

That's pretty much what I was thinking, except I didn't have the terminology. Now I know what kind of agreements we want to start looking at, we can move forward. I think we'll try to have something general purpose in place before approaching any additional publishers. Thanks very much. This has been really helpful.