Writing the Ultimate Ghostwriting Contract: Key Provisions and Sample Agreement
Everything You Need to Know about Ghostwriting Contracts
Like most professional writing projects, ghostwriting should include a contract. Although it can be easy to get caught up in the excitement of a new job (where exchanging information and ideas is the primary task), it does not pay to neglect this very important step. In fact, a contract is even more important in the case of ghostwriting than with many other types of jobs, as you may be working under very tight deadlines that leave no room for last-minute changes.
Without a contract, you may find that your new client expects edits to a manuscript with no notice or that he or she refuses to pay once you’ve completed the project. A written agreement between you and your client establishes a professional relationship and protects the interests of both parties. Working without an agreement is like jumping from an airplane without a parachute — it’s possible, but it’s not a smart way to make a living .
A ghostwriting contract serves two primary purposes: to create a legally-binding contract between the writer and the client, in addition to establishing a framework for the project. The contract lays out the basic terms of the agreement, such as payment structures and the agreed-upon rates for different types of work. These terms should include a flattering description of the project, which the ghostwriter can use to determine where to focus his or her efforts in the future. This is true for both short-term projects, such as magazine articles, and longer-term assignments like books and screenplays.
An effective ghostwriting contract is a brief document that includes essential information, such as the names and addresses of both parties, as well as the title and format of the piece to be written. Additional information may include the total fee (with details about payment due at certain milestones) and a non-disclosure statement.
Essential Contract Clauses for Ghostwriting
While there is no formula for any freelance contract, there are essential clauses that should appear in any ghostwriting contract. These clauses include, but are not limited to:
- Confidentiality. This is crucial because you are discussing information with your ghostwriter that has not been published, including the actual story idea, details of your life and your family members that only you may know. You’ll want the ghostwriter to agree to keep this information confidential so it won’t be leaked to the public or other parties.
- Payment. You will need to decide on a budget and a payment schedule. Are you going to pay a flat fee per chapter, or per page, or are going to do an hourly rate? You will also need to decide how and when you will make these payments. Some writers prefer payment in full up front, (either safely into an escrow service or via escrow agreement, or into a joint-client trust account), while others prefer payments (or a percentage) as the project moves along.
- Revisions. It’s common to not get it right the first time, or second or third. If you are unsure about how many revisions you should do, don’t be, there is no such thing as too many. Writing is not perfect from the start, and you should not expect it to be. Ghostwriting is a collaborative process, which means working together to get it right. Like an artist painting a portrait, the writer will try to "capture the likeness" and get the work down on paper as best they can. Usually, once the initial draft is done, the revising process can begin; but this is part of a good ghostwriter’s job, to get it just right.
- Termination. If the relationship between you and the writer doesn’t work out, or if they just can’t seem to get it right, you should have a clause in the contract to terminate the contract. But, what will happen if you terminate the contract? Will the writer keep their rights to what they have already written, or is it more equitable for you to keep the unfinished manuscript in order to give the next ghostwriter a fair chance at getting it right? Will you lose your deposit, or will you be entitled to a full refund minus work and time already put in? Make sure you have a full understanding so there is no bad blood between you and your ghostwriter as you part ways.
How to Outline Project Expectations and Deliverables
A successful ghostwriting contract establishes clear expectations between the writer and the client, so there are no misunderstandings about the scope of work, the timeline for completion, and the quality of the final work product. The contract should spell out the specific number of words required in the manuscript, both in entirety and per chapter, and whether those are soft or hard numbers (soft numbers give the writer extra leeway especially on later drafts; hard numbers specify an exact end for the manuscript even if it means sacrificing quality in the final draft). A separate contract should govern the work done by editors and proofreaders, because their duties are beyond the scope of the original manuscript and additional work done by them is liable to take longer than anticipated.
For example, if the final manuscript is being broken into multiple volumes, the contract should establish a deadline for the client to complete its initial review of the manuscript of a certain number of words. If there is an illustrator attached to the project, or if the writer anticipates that photographs or drawings will need to be inserted or redrawn, the contract should also clear up who is responsible for obtaining those images.
Deadlines should also be strictly adhered to by both parties. If the writer fails to meet a deadline, the client should be able to seek and recover any damages suffered as a result of that failure, but the client should also understand that if it misses a deadline, the writer should have the right to be paid the full fee it bargained for without having to do any rescheduling, and without having to renegotiate the contract. The best way to tackle the issue of disputes over missed deadlines is to bond them into the contract. A writer may be much more willing to promise a given result if it knows it is guaranteed to get the full compensation it bargained for on the first draft, and a client may be willing to pay additional compensation if it has the opportunity to demand and receive more revisions. For instance, the contract may provide that either party can unilaterally extend a deadline for a second draft or third draft without a penalty, but further extensions would necessitate renegotiation of the contract.
The quality of the final product is also an essential part of any ghostwriting contract. Should the client be allowed to approve content before publication, or only after the first revision? Who should get the credit on jackets and advertising materials? Should the client pay for the graphics, photos, and other media materials inserted into the product, or should the writer bear that cost? Contracts for ghostwriting services are often much more complex than they might first appear.
Ghostwriter Rights and Ownership – Understanding Ownership of Work
A big part of any ghostwriting contract is the issue of rights and ownership — what rights you have with respect to the finished product, what rights the publisher has in it (if you’re self-publishing the book, there should be no discussion here), what happens if the book is licensed or put on sale, and so on. As discussed above, the basic deal when it comes to ghostwriting is that the ghostwriter owns no part of the finished work. The only exception would be if so stipulated, and the odds are likely that the publisher, whether it be an agent (in some cases) or a traditional publishing house, will want the same. This is important, because this is where most conflicts between authors and their ghostwriters occur — the much-maligned "credit" that gets awarded to the ghostwriter, as determined by the level of involvement they had in the book’s creation, is exceedingly hard to measure, whereas the rights and ownership are quite clear. Let’s say your ghostwriter creates a piece of work that is licensed to third party, or even sold to a publisher. The question is — what’s your ghostwriter’s cut on this deal? This has nothing to do with royalties — all of that is covered below — but it has to do with the copyright in the work itself. Most conventional contracts simply transfer the copyright to the publisher/studio/whatever. However, there are some people who treat such a transfer as just that — a reversion to the ghostwriter when the money is paid. It’s that simple – the rights revert to the publisher, in deferred payment for completion. Some contracts will even ascribe percentages of works to the ghostwriter on the assumption that they will be ascribed to them in such an event. It’s a sore point for many authors, who feel as though the finished works are their property, plain and simply, and that they should be therefore compensated as such. While this may make a lot of intuitive sense, remember that they have little control over the final work — once they’re out the door, it’s generally up to the author to either approve the final copy (in the case of articles and shorter works that are ghostwritten) or sign off on it (in the case of longer works like novels and memoirs, which are much less common).
Negotiating Payment Terms and Royalties
When it comes to payment, there are a variety of options – flat fees, hourly wages, and revenue-sharing arrangements. It is not uncommon to see contracts that stipulate the payment of writing fees as well as any extra expenses.
Generally, the more experience the ghostwriter has, the more they will charge. As the old adage goes, "if you pay peanuts, you’ll get monkeys." The catch here is to balance your budget with your needs. Sometimes it means hiring a more experienced writer when you have the budget to allow it and sometimes it means going with projecting cost savings from a new writer.
In the event that you cannot afford to pay the ghostwriter their full fee, you may even be able to work out a bartering system . For example, if you own a business that the ghostwriter has a need for, you might find that both parties end up ahead by adding that service to their schedule instead of paying out hard cash.
Another common option for compensation is to offer royalties to the author. When you offer royalties to the ghostwriter, they forgo some of their upfront fee for a share of the future earnings of the book. This can be an excellent option as it often means retaining the services or input of the ghostwriter on the future of the project during the book’s release and any marketing that arises from it in the early years.
Even with royalties, a termination of agreement clause should be included. This should clearly dictate the return or prompt compensation for any fees and/or royalties owed to the ghostwriter should you choose to no longer work with them after a certain date.
Ghostwriting Contract: A Sample Template
This Ghostwriting Agreement ("Agreement") is made and entered into this [DATE] (the "Effective Date"), by and between [CLIENT NAME] (the "Client" or "you"), and [WRITER NAME] (the "Writer" or "Contractor") (collectively, the "Parties"). Client and Writer may also be referred to herein individually as a "Party" and/or collectively as the "Parties."
1. PROJECT DESCRIPTION
Subject to the terms and conditions of this Agreement, Writer shall provide Client with writing services outlined in the attached Scope of Work (the "Services"). The Services will be provided to the Client in connection with the Project (the "Project") outlined in the Scope of Work and provided to Writer by Client.
2. COMPENSATION
In exchange for Writer’s Services, and completion of the Services in accordance with the terms and Conditions of this Agreement, Client shall pay Writer as set forth in the Compensation Schedule below:
3. INTELLECTUAL PROPERTY
Upon payment of the Compensation, Writer shall assign any and all of Writer’s copyright, and any other intellectual property rights, to the Client concerning the Services provided to the Client under this Agreement. Upon execution of this Agreement, Client owns all rights to the work performed by the Writer.
4. CONFIDENTIALITY AND NON-DISCLOSURE
The terms and existence of this Agreement are confidential. Neither Party shall disclose the terms of this Agreement to any third party, except to the Writer or Client’s employees, agents and representatives who require such information in connection with their responsibilities with the Client or Writer. This Agreement does not prevent Writer from including the Project and Services in Writer’s portfolio, but the Client’s name and/or the Project’s name shall not be disclosed by Writer without prior permission of the Client.
5. RELATIONSHIP OF THE PARTIES
The Writer is an independent contractor with respect to the Client and not an employee of the Client. Client shall not be liable for any debts, liabilities or obligations incurred by Writer in connection with Writer’s Services performed under this Agreement.
6. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall be governed by and construed in accordance with the laws of the State of [NAME STATE]. In the event of a dispute between the Parties, the Parties agree to engage in good faith efforts to resolve the dispute.
7. MISCELLANEOUS
(a) This Agreement constitutes the entire Agreement of the Parties, and supersedes any prior agreement or understanding, whether written or oral, relating to the subject matter.
(b) If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, then such unenforceable provision will be deemed to be amended as necessary to be enforceable to the maximum extent permitted by applicable law, and the remaining portion of this Agreement will remain in full force and effect.
(c) No modification, amendment or waiver of this Agreement shall be binding upon any Party unless evidenced by a writing executed by the Parties.
(d) Any waiver or forbearance with respect to a breach or default of any obligation of either Party to the other Party shall not operate as, or be construed as, a continuing waiver or forbearance with respect to that breach or default or any other subsequent breach or default.
Common Issues when it comes to Ghostwriting Contracts
Common challenges met when drafting ghostwriting contracts include:
- Omitting deadlines and milestones. A project with no deadline is a project that will never be completed. The best way to handle this is to set a reasonable deadline, then add intermediary milestones that guide the writer, and keep both parties to the timeline. Technology makes it easier than ever to keep track of deadlines, so there’s no excuse for a delay.
- Failing to specify quality marks. A ghostwriter needs to know when you (or, more likely, your editor) can cut a piece of writing loose. Set your quality marks up front, so the writer knows when they’ve done you well, and when they can get referral business. Plus, it ensures you’re not boxed into taking a quality level below your standard.
- Tightening up content. If you’re in corporate or commercial publication, you will have house style guidelines. Make sure you outline a schedule that works in translation and editorial review.
- Specifying payment. It used to be the norm to pay a writer once they’d submitted the final draft, but most freelancers aren’t happy to work without a deposit anymore. Don’t clutch the purse strings until they’ve sent you something you can’t live without; pay them something to motivate them, and sweeten the deal with a bonus when you’ve received the work you want.
Legal Considerations and Insights
When working with a ghostwriter, both writers and clients should ensure they are compliant with relevant laws and regulations. Some key considerations include:
Copyright law:
It is commonly assumed that once a writer produces a piece of written work, such as a manuscript, they automatically own the copyright to that work. However, as discussed earlier, ghostwriters are contracted to create work that is owned by the client.
In jurisdictions like the United States, the copyright for a work that is produced in exchange for payment is owned by the entity or individual who contracted the work, as long as the work falls within the parameters of a work made for hire. Works made for hire can be anything from books to songs to art, and would include any ghostwritten work. This means that the client, rather than the ghostwriter, owns the copyright to the work. Regardless of this, it’s still good practice for the client to credit the ghostwriter if they are willing to do so.
Confidentiality:
With the nature of ghostwriting involving sensitive material, reverence and care are necessary when discussing a client’s project with other people outside of the project. For example, it would be inappropriate to discuss details about a client’s life with others if the project is a memoir. Ghostwriters, and especially clients, should require all parties involved in a project, including contractors and publishers, to sign a Non-Disclosure Agreement (NDA) for proper protection. NDAs can be used to ensure that third-party parties cannot be exposed to rip-off attempts , and that ideas remain within the confines of the project.
Tip: NDAs can be detrimental to a project if they are too strict, as they may prevent the parties from employing methods that may help boost their own careers. Some companies and individuals require their NDAs to be signed upon the start of a project; and therefore may prevent interested parties from discussing possibilities with others in their field. Given that there are plenty of situations where sharing your ideas is encouraged, and that NDAs can subtly stifle innovation, it’s advisable to seek legal advice on what terms and conditions should be included in NDAs.
Payment and spending:
When ghostwriters are hired by an individual or company, they are expected to be paid upfront to begin their work. Even for simple projects, some ghostwriters may require full payment upfront, especially self-published authors. A possible solution to this potential nightmare is to hire a company with a professional team of writers, and utilize an unlimited service. As opposed to hiring a freelance writer, for a low monthly fee, a company will provide you with unlimited access to writers and editors, as long as you are okay with sharing them.
In addition to payment arrangement, there are other financial considerations when signing a ghostwriting contract. For example, ghostwriters may require payment for any materials they purchase that will be necessary to complete the project – such as a copy or purchased materials. Additionally, if the project requires a writer to travel, whether to conduct interviews or perform research, it may be necessary for the client to compensate the writer for travel as well.