Jenkins Group creates ghosted books for its clients. Given their volume and the number of writers they use, I thought it would make sense to post a review when I finally saw one of their contracts. Please remember that I'm not a lawyer, this isn't legal advice, and negotiating to get better terms is always a good idea:
- Section 1: Services to be Rendered In this section, the definition of work seems overly broad and, as I'll point out in another section, potentially confusing. It's not just the writing, but any ideas that you come up with as well as moral rights, which doesn't matter if you're a US writer because you don't have them. (It's a set of rights in the EU and some other places that provide protection for misuse of a person's work as well as of the creator's reputation.)
- Section 2: Schedule This is straightforward - you'll use the schedule in a project assignment form.
- Section 3: Grant of RightsHere is where things get confusing. You don't sign away copyright and this isn't work made for hire in this section, which would be refreshing for this type of project, except that you have to sign over rights in a later clause. But here, you're providing worldwide book rights exclusively to the "work" - which in this case means more than the drafts you turn in. How you have book rights in an idea just doesn't make sense to me. Would it mean that you couldn't write another book about the idea? I'm not sure that is the case, because book rights are a concept within the broader concept of copyright, and ideas do not enjoy copyright. So I suspect that it would not prevent it. Also, note that this leaves you free to use the material in articles, etc., so long as the writing doesn't appear in another book. Other than the confusion, this is pretty easy going.
- Section 4: Fees and Expenses This is clear - fees are specified in a project assignment.
- Section 5: Payment Fee schedules are specified in a project assignment, so it's tough to say at this point whether what they want is worth what they give in return.
- Section 6: Warranties and Indemnification Subsections A, B, and C are pretty straightforward. In D, you have to agree that you won't do a whole bunch of things. Luckily, the last clause in the contract specifies that the agreement is interpreted under Michigan law, so if someone sued in, say, the U.K. for libel, to be in breach of these warranties, I think they'd have to prove that the libel rose to the level required in the US and, specifically, in Michigan. That keeps you out of a lot of trouble when a contract effectively makes you consider any set of laws anywhere. If F, it would be better if indemnification was only invoked by the warranties, which is a traditional and reasonable approach. Any other alleged breach would be considered as a normal contractual dispute, and they certainly aren't offering to indemnify all of your expenses and costs if they breach any part of the agreement. G is a welcome sight, as you expressly are not responsible for what the client does.
- Section 7: Relationship of Parties This, too, is straightforward.
- Seciton 8: Ownership of the Work OK, now things get really confusing again. On one hand, this is WMFH, and yet they're still asking you to provide worldwide book rights, which, under this section, you clearly cannot do. Also, if doing WMFH on a ghosted book is acceptable to you (and it's hardly the only way copyright is handled under such circumstances), then it should be for the final version only, and not ideas, et. al. However, the assignment letter can state that notes, sketches, etc. would be yours, so it's something to negotiate. Better not to have the default be that it belongs to the client, though.
- Section 9: Releases
It's reasonable enough for you to get releases, but what if you've been asked to incorporate some material by Jenkins or by the client? Then you should not be responsible for getting the rights, nor for any fees involved in doing so.
- Section 10: Arbitration They probably think that arbitration is good because it typically favors businesses, not individuals. However, arbitration can be more expensive than people realize (you're hiring lawyers and judges or trained mediators). The clause doesn't state which of the dozens of rule sets that the AAA has will be used. It doesn't state how many arbitrators will be involved nor how they're chosen. And it forces you to go to Traverse City, MI for any such dealings, unless it's for under $1,000. So, if they're very late in paying you and owe you $1,500, you cannot go to small claims court, and you can't sue them locally. You have to get arbitrators, and you may not get your fees reimbursed.
- Section 11: Term and TerminationIt's normal to have a breach cure provision as the one in here. But now combine that with the earlier clause about indemnification. If you "cure" a breach they claim, then you've effectively admitted that you did breach some part of the agreement, which would mean they could pass on their "costs," apparently without a limit.
- Section 12 There is no section 12 - they just skipped from 11 to 13.
- Section 13: Severability Again, this is pretty standard - having one part of a contract tossed doesn't mean that the whole thing goes out the window.
- Section 14: Miscellany Just some additional stuff, including having things governed by the laws of Michigan, as I mentioned before.
Labels: books, contract, ghosting, review