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Unintended Perils of Collaboration from Ambiguous and Incomplete Agreements

Co-author Gerald M. Levine

Literary collaboration is a marriage of convenience. There are perils in ambiguous and incomplete agreements. The parties have to preliminarily agree to their separate and joint responsibilities for the completion and submission of their work. What they think they know and can trust about each other is likely to be more than their ignorance of the other person’s work habits and literary abilities. Past performance does not necessarily assure future results and ability to work together is only tested after execution of the agreement. Think of a collaboration agreement as a pre-nuptial agreement. The unknowns include whether the parties can work together and the chemistry of their separate contributions. Publishers draft termination rights into their agreements for manuscript unacceptability. Collaborators should do that too. If they cannot work together; if one thinks the other’s contributions are inadequate, there should be a way out. Therefore, basic to any agreement is divorce. How do the parties separate if their collaboration doesn’t work?

The answer must come from the well crafted terms of parties’ agreement. Ill-crafted only leads to dispute. Disputes that mature into lawsuits are adjudicated under local (contract) law of the state having jurisdiction of the parties. Ambiguity in the agreement precludes any quick resolution, thereby raising (to a significant degree) the expenses of litigation. (The fact of their being few cases on this subject indicates that prosecuting a claim would likely be prohibitively expensive).

In a dispute in New York, Locke v. Aston, 1 A.D.3d 160 (1st Dept 2003), an appellate court held the phrase “if the collaboration is unsuccessful” ambiguous. “The motion court [explained the appellate court in rejecting the motion court’s analysis] declared that ‘Dr. Aston no longer collaborates with Ms. Locke; the collaboration is unsuccessful.’ However, the term ‘unsuccessful’ is susceptible of other meanings.” One of the other meanings is that one of the parties found the other’s work unacceptable. This does not excuse breach of contract, it does not support a claim for defamation.

In addition to ambiguities, the parties’ agreement in Lock was “not complete.” “[D]efendant acknowledges that the April 30 agreement does not preclude remedies for which it does not expressly provide, thereby conceding that the agreement is not complete.” In considering other intentions,

Paragraph 6 of the agreement provides that, “if the collaboration is unsuccessful,” text written by defendant shall revert to him and text written by plaintiff shall return to her, but there is no language indicating that reversion of their respective intellectual property rights is intended to be the sole remedy in the event of a breach by one of the parties or that plaintiff waived all her rights in the event of a breach. Indeed, defendant asserts that remedies for breach “would absolutely exist” if, for instance, future profits were not split as required by the agreement.

At the center of the Locke lawsuit was a claim for defamation. Aston stated that plaintiff did “substandard” work and that the manuscript was “not up to standard.” An opinion clearly disturbing, but not actionable as a defamation any more than it would be if the publisher cancelled the publishing contract for the same reason. The parties had a publishing contract with HarperCollins. The court noted that

The court rejected plaintiff’s argument that the term refers to the parties’ inability to find a publisher, on the ground that when they entered into the agreement the parties had already signed a publishing contract with HarperCollins. However, the publishing contract, which is expressly referred to in the April 30 agreement, provides numerous grounds for the publisher to refuse to publish, and indeed HarperCollins did not agree to go forward until May. The publishing contract required the manuscript to be “acceptable” to the publisher and allowed the publisher to terminate if it did not deem the manuscript acceptable. It also provided for the publisher’s control of all details of publication, including pricing, advertising and promotion of the book. These provisions, and others, made it possible for the parties’ collaboration to be “unsuccessful” even after the publishing contract was signed and even if the parties did not breach their obligations to each other.

In drafting a collaboration agreement more is required than stating what the project is and each party’s contribution to the whole. It has to provide for the kinds of contingencies pointed out in the Locke lawsuit.

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