The creation of a dramatic work with a partner can be a very personal and intimate activity. At the beginning, it’s all hearts and flowers… the first blush of creative synergy fairly bursting off the page. The collaboration is in the honeymoon phase, and no one is thinking of contracts or “what if” scenarios. Like a prenuptial agreement, collaboration agreements at this point might be considered “unromantic”; after all, anticipating a divorce could provoke one, in this kind of magical tautology. “Oh, we’re friends… we don’t need a contract,” they say.
But it’s at this point in the relationship, when love is still in bloom, that a collaboration agreement may be most easily negotiated. Because, later, when the honeymoon is over and the everyday reality of partnering in the creation of a new show starts to cause friction, collaborators may not handle it well. Those who have good communication with each other, and who share a common vision of the work, will handle the inevitable bumps in the road with good humor, consideration and rationality. But where the communication has been poor, resentments can build past the point of no return, and partners can react with great emotion: insecurity, anger, betrayal, pride. At that point, it’s generally too late to repair the partnership, and trying to negotiate a contract will be much more difficult, yet still essential to the future of the work.
Collaboration agreements allow writers to decide for themselves how they will make decisions about their show (e.g., decisions about the script and score, how to give approvals over the artistic personnel, what rights to license, and to whom, and how to split royalties). Without such an agreement, the authors’ control over their work is determined, instead, by the vagaries of copyright law… state and federal statutes, and common law, as interpreted by any particular judge or jury. For instance, without an agreement a work could be deemed a “joint work” which would give full ownership over the entire show to each author, allowing each author to change it and license it without the approval of the other author(s), responsible only for an accounting to the co-authors. This is not a good situation for a show, or its creators. So, even when a collaboration is collapsing, it is important to iron out these issues if the work is to have any life thereafter.
It is at this point where I’m sometimes asked to “mediate”. Members can come to the Guild with a collaborative issue or dispute and we try to offer an objective, experienced third party view of the situation, and help the writers find some common ground to resolve their dispute and move forward. It’s an informal, non-binding process that has been helpful for some and a waste of time for others.
A common condition in many of these disputes is that there is one author who may have originated the concept and started the project before bringing on a collaborator. In this situation, the conceiving author may end up treating the second author as an employee … but usually without having paid the substantial commission that a producer would normally pay. The initiating author might, for example, demand final say on all creative and business matters related to the show, even including the right to change the second author’s work, rather than treat their co-author as a true collaborator.
This feeling of “ownership” over the other person’s authorial contributions generally dooms a collaboration from the outset. Unless both parties are willing to share the control over the work in some way, then no contract will save the partnership. The only thing a collaboration agreement can do, then, is handle the custody of the child after the divorce.
And that is reason enough to enter into such an agreement.
Of course, there have been rewarding and successful collaborations without any kind of contract whatsoever. Just the other day, I participated in a DG seminar on collaboration agreements, and we had on the panel the estimable team of Gretchen Cryer and Nancy Ford. They’ve been writing together for 40 years without anything in writing. But they both admitted to having had collaborations with others where a contract would have been greatly helpful.
If you have a collaboration dispute and seek mediation, or if you and your collaborator would just like to work out fair terms for a collaboration agreement, just call our business affairs department. Because not everyone can count on a collaboration as fortuitous as that shared by Cryer and Ford, and if things fall apart there should be no need to throw out the baby with the bathwater.