Work-for-Hire: A Cautionary Tale
By Donald Maass | October 2, 2024 |
This month I’m departing from my usual craft advice to share something from the other side of my work as a literary agent, the business of publishing. It starts with a sad story.
The other day a writer pal phoned me. He told me that a third writer whom we both know was upset. An unscrupulous publisher had stolen a story idea of hers, given it to another writer, and now there was a Big Five contract and a movie deal.
I was sympathetic but skeptical. Ideas as such are not subject to copyright protection. Nevertheless, I phoned the Aggrieved Writer (we’ll call her “AW”) and got the full story. First, AW is a published author of a dozen or so books. She was formerly repped by a Big Agency, is repped again by another agent, but the situation in question happened between agents.
For income, AW had been copy-editing for an indie publisher—himself also a former client of the Big Agency. (We’ll call him “TIP”, The Independent Publisher.) TIP suggested that AW write something for him that he could publish. AW mentioned a cute suspense idea she had. Then—the story really starts here—TIP wrote a 10K word outline and AW wrote 30K words of a manuscript.
However, things were not working out financially, so AW discontinued working on the manuscript. AW assumed that the idea and the words which she had written belonged to her. She told me that was the deal.
“Deal? What deal?” I asked. “Was there a contract? Verbal? Written?”
There was a written contract. As we spoke, AW e-mailed the contract to me. I opened it and immediately recognized the type of contract it was. My heart sank. Work-for-Hire. (Shorthanded in the industry as “WFH” or sometimes nowadays styled as “IP” deals, for “intellectual property”.)
WFH
In case you don’t know, WFH is a designation under the copyright law which allows for copyright to be held not by an individual author but by an entity, when the writer is contributing to a collective work. There are nine types of work which can be designated WFH under the copyright law:
- as a contribution to a collective work,
- as a part of a motion picture or other audiovisual work,
- as a translation,
- as a supplementary work,
- as a compilation,
- as an instructional text,
- as a test,
- as answer material for a test,
- as an atlas
Absent from that list are works of fiction. Yes, you read that right. Fiction cannot, under the law, be a WFH. So how are Star Trek and Star Wars novels WFH? How is that allowed? It’s not, but readers want to read, and writers want to write, and publishers want to publish, fiction which is based upon characters and story worlds which have been developed and are, practically-speaking, owned by others. Thus, commissioning tie-in novels as WFH is a longstanding industry practice.
However, there’s a lot you need to know. Take it from this agent.
As far as I know, fiction as WFH has never been tested in the court system. (Attorneys, correct me if I’m wrong.) If it were, I believe that copyright would belong to the author, not an entity, because novels, for instance, are too singly authored to be “collective” works. But hold on, Hollywood attorneys figured that out long ago and so the language of WFH agreements includes a provision that if ever a work is determined—perhaps by adjudication—to not be a WFH, then nevertheless you, the author, are permanently signing over the copyright to your work to the commissioning entity.
Furthermore, you the author are acknowledging that what you write is a WFH and are signing an agreement knowingly on that basis. That is important to the entity and its attorneys because the copyright law says that WFH designation is only valid if both parties agree to it and sign so in writing.
But hey, the nature of WFH under the law is employment. Yes, you read that right also. Under the law, as a WFH writer you become an employee, PAID FOR YOUR TIME and ENTITLED TO EMPLOYEE RIGHTS AND BENEFITS. That’s the law. Actual practice? Not so sweet. Hollywood attorneys add language that stipulates that you, the fiction writer, are NOT an employee or entitled to any benefits, but are instead an independent contractor, sort of a gig economy worker before the gig economy was ever invented.
Most WFH agreements otherwise bear a distant resemblance to ordinary publishing contracts. There is a fee for the work, and sometimes a royalty share, occasionally a rights revenue share. Great, huh? Who cares that it’s WFH when you’re getting a fair deal not that different from a regular publishing deal?
Except…it’s not a regular publishing deal. There are key differences which can clobber you in ways you don’t expect. For one thing, revision. In Hollywood, unionized screenwriters get paid separately for every draft they write. Not so in WFH book deals. Unless specifically negotiated otherwise, revision can be open ended and—there are horror stories—endless. With certain fee payments tied (not wholly unreasonably) to manuscript acceptance, you are at the mercy of the commissioning entity.
There’s more. Some WFH deals are offered by publishers who themselves have licensed the right to create and publish tie-in novels from a thirty party such as a movie studio or TV production company. Well, sure, who cares?
The difference is that your contract is with a publisher but the copyright belongs to the third party. What happens when the publisher’s license to publish runs out, or the book you wrote goes out of print, or the publisher goes out of business? The copyright-holding entity owns your novel. The copyright-holding entity can republish your novel. If so, are you entitled to further money? No, you are not. Remember, your contract is (or was) between you and the publisher not the copyright holder. You are out of luck unless you specifically negotiate perpetuity, which in my observation does not happen in almost all cases.
There’s still more. So far, I have been using tie-in novels as an example but today all kinds of projects are being dreamed up not only by book packagers (pejoratively “fiction factories”) but by publishers, indie publishers, branded authors, rock bands (yes) and others who whip up a story framework and invite authors to play in those worlds…except, of course, that these are “IP” projects and no matter how original is the story written by you, the author, it is still on a WFH basis. Someone else owns it.
Be aware. I’m just scratching the surface.
If you’d like a look at what the copyright law says about WFH, you can download a guide from the Copyright Office HERE. That’s the law. In practice, there’s a lot more to understand. For now, I’ll just share with you some provisions which my agency fights for in WFH agreements for fiction:
- If contracting with a publisher who is operating under a third-party license, that license is complete and valid, the publisher has the right to commission a work from you, and all payment due under the agreement with the publisher will be rendered regardless of any future changes to the publisher’s license.
- You are entitled to be paid regardless of whether what you write is finally accepted or not. (In practice, this may mean retaining a signing fee, but in any event retaining a defined amount in respect of your time.)
- Approval of your manuscript, and any fee then due, will be paid promptly after delivery and regardless of whether a third party must also approve. (Note: reasonable revision may follow, but when the job is done you should be paid right away for your time.)
- You will write from a pre-approved outline and any requested revisions shall not exceed the scope of that approved outline. Nevertheless, revision shall not alter or replace more than 25% of the work unless for an additional fee.
- If not approved, you will still receive the full fee promised if the work that is finally published is 50% yours, meaning the words as you wrote them. (Remember, you spent the time to write a whole novel.)
- If not approved, your text belongs to you even if characters and other story components do not. (Note: this is a very difficult provision to get.)
- If your work is republished later on, the same deal applies. If you are due a royalty/rights share under the original publishing arrangement, you get the same royalty/rights share under any new arrangement. (Note: In third party licensing situations, this may not be binding upon that third party.)
- In the agreement, you warrant and indemnify the commissioning entity with respect to what you write, but the commissioning entity likewise cross-indemnifies you with respect to anything supplied to you by them.
- Use of your name, likeness and bio is permitted but subject to your approval and not to go beyond promotion of the work which you wrote.
Most every provision I included above comes from hard experience at my agency and other agencies. In other words, those provisions reflect many ways in which writers have at one time or another been screwed under WFH agreements.
Back to the Sad Story
So, back to AW and her unhappy experience with TIP. As I read her WFH agreement, I quickly noticed some red flags. Honestly, the red flags were waving wildly.
First, although the idea was AW’s, TIP claimed it as WFH. Was that necessary? Ask me, no. TIP’s agreement was primarily for publishing the work. Second, AW’s “fee” was limited to a later 50% share of revenues. Note that. AW was not getting paid for her time, but only after publication.
So, what would happen if AW decided that her arrangement with TIP was not working out and stopped writing? Was her idea and manuscript hers to keep? Or even owned with TIP in partnership? No. Not as presented. The agreement which I was reading as we spoke had all of the heavy WFH language and none of the protections above.
And, AW had signed it.
The story gets worse. Not only did TIP own AW’s idea and manuscript, TIP then did not publish the novel. Instead, TIP gave the concept to another writer and, acting as an agent, sold the resulting property—same story—to a Big Five publisher. Later, a “major” movie deal was reported to a producer whose name you would recognize, and TIP got an executive producer credit into the bargain.
AW? AW got nothing.
I felt bad for AW and referred her to a publishing attorney for a second opinion, but it seemed to me that any case might be difficult to bring. AW said, “I was an idiot. I trusted someone.” I would say rather that AW did not fully understand all that WFH means and where that would leave her if things in her situation went south.
So, friends, do not let this happen to you. When you see the letters “WFH” in a deal memo or hear the fateful letters “IP” spoken, be aware. What you’re getting into isn’t automatically an author-friendly deal. You may wish to go ahead, plenty of clients at my agency have done so, and mostly happily, but initially and without negotiation for protective provisions, WFH is loaded for one side and that side isn’t yours.
Have you ever written on a WFH basis? Was it a good experience or not?
Donald Maass (he/him) founded the Donald Maass Literary Agency. in New York in 1980. He is the author of The Career Novelist (1996), Writing the Breakout Novel (2001), Writing the Breakout Novel Workbook (2004), The Fire in Fiction (2009), The Breakout Novelist (2011), Writing 21st Century Fiction (2012) and The Emotional Craft of Fiction (2019). He has presented hundreds of workshops around the world and is a past president of the American Association of Literary Agents (formerly AAR).
[coffee]
Chilling. Thanks, Don.
Indeed! (How’s life in Europe, Lloyd? Drop me a line!)
Yikes! Poor AW. But wow, that must have been some premise.
This tale makes a good case for going trad publishing, just to have an agent to look out for you. I’ve been sitting on the fence, trying to decide if I want to try trad with my third book, (went straight to self-pub for the first two). There are pros and cons for each path, but your post points out how valuable an agent can be. There are no agents in self-pub, that I know of.
Thanks for the post. I’d love to hear more literary agent tales, cautionary or inspiring.
After 47 years in this industry, I’ve got plenty of agent takes, no question!
Hi Don, I’m glad you wrote about this as I’m seeing many more WFH “opportunities” arise for writers that are as you said, coming from production companies and book packagers who are aiming for the multi-media profits and care absolutely nothing about a writer’s rights. I’ve done a WFH. The reason I took the contract wasn’t because I didn’t have good agent advice behind me. My agent said she advises against them normally, but we talked at length about what it might mean for me. I decided to take the deal. I’m a bit of a risk-taker and adventurer at heart, after all. I also hadn’t sold a solo novel in over four years, and though I was nearly finished with my own manuscript that only months later would go on to sell in a 2-book deal, I didn’t know that at the time. I wanted the certainty of both a paycheck and a new Heather Webb book on the shelves at last.
I loved the editor I was working with because she was my long-time editor at a big house (in addition to the production company editor), but like your client, there was a snafu behind the scenes and the book idea was actually developed into a screenplay by someone else and sold to a very big Hollywood director with huge actors attached. Right out from underneath me. I was still contracted to finish the book so I did, and it got zero support, flopped, and threatened my standing with booksellers. Talk about a major bummer. Never again. If this movie is ever made (or the purported Broadway show in the making), perhaps I’ll see a surge in sales and recognition. That’s a big fat IF. I’ll find my certainty of a paycheck somewhere else next time, thank you very much. Live and learn.
Yes, the “opportunities” for WFH are plentiful these days. Caution is warranted, as your comment attests. Thanks for that.
What an awful experience for AW! I didn’t know that fiction was not supposed to be WFH. I have had many WFH contracts over the years, mainly for nonfiction books and some ghostwritten books. For some, I was paid a flat rate of $5,000 by the publisher. I didn’t think that was bad, especially since I was paid. But a few years ago, a lawyer friend of mine advised me to stop accepting these contracts and to request a royalty contract. She also said the $5,000 that I thought was great was not so great.
Good advice.
Thanks for shining a light on this dark practice, Don. I’m incensed for AW. Do legalities prevent her from publicly sharing her story–in a purely fact-based way–and revealing TIP’s name, to warn off other writers? Regardless, WFH should henceforth be known as WTFH, IMHO.
Therese-
I protected “AW” to spare her embarrassment, and also concealed “TIP” as “AW” fears retaliation from him. And you are right to wonder if there is some legal impediment for “AW”, another thing to watch out for in WFH agreements are NDA provisions, effectively gag orders built into the contracts.
Speaking of cautions, something I didn’t have space to touch upon today is the proliferation of “IP” buyouts, monied entities buying up author’s copyrights, royalty streams and the like. Complicated subject but a trend that I think will only grow.
We’re living in an ugly era, and –while I know ugly things have happened throughout time– it seems to me that a lot of ugly is just boldly flailing around these days. Writers beware, indeed.
Yikes. There are implications in this area for indie writers as well, because some online publication platforms can have those clauses.
Don, this is a sad tale indeed. I empathize with AW. As one who has written several WFH books with two companies, having a legal rep review the contract before signing is critical. I believe the writer should fully understand the contract to accept these terms—or not. My experiences with one company have been truly wonderful and the other was mixed.
I was hired to write a 3-book illustrated middle grade series by Epic! and thoroughly enjoyed the experience. Outlined in the contract, I created the story outlines that were edited/approved by my assigned editor, offered a flat-fee without royalties to write them, and my name was to be on the book. It was to come out on a digital platform and in hardcover with a partnered publisher, Andrews McMeel.
Everything was transparent, and both publishers were professional, responsive, and wonderful to work with. They even provided me at no charge with book trailers, book plates, book marks, and a publicist—even though I did not benefit financially from any sales. HOWEVER, these sales were important to other publishers with subsequent books my agent pitched. SO, that can be a great benefit to use to boost your name/products for future book sales.
In my 2nd experience with a book packager (I won’t mention who), once again the contract was clear. I also, negotiated for more money—something to keep in mind. You can negotiate for WFH prices. And I was delighted that this contract included some royalties for print and film. However, in this case the company was pitching the finished book to other publishers. Something else to keep in mind for this kind of contract as sadly, my book did not get sold. I was disappointed especially as only one round of submissions was done, during the pandemic as well, and it died in the water. Since this company owns this book, it will never be published unless they submit it again—and after more than 3 years, I doubt it.
In addition, they ghosted me in my follow up for months about where this book project stood. It’s painful to know I can never publish this story—not even self-publish it, as they own the rights to it. I wrote a 55K novel in 30 days. It was intense. I loved the product. I got paid. And I took less than my regular fee as they were a new company and I took a chance on them. And that was it. So, I think a story here is to understand in your WFH contract if this company is publishing the book, or intends to merely pitch it to publishers. A huge difference—and I would not go the avenue again. Also, understand you take a risk with a new company.
I would, however, do the Epic! model of WFH for several reasons. It gets your work out there and if sells well, can lead to more book contracts—WFH or traditional. it can boost future sales if your book does well and can lead to further opportunities.
In closing, my words of advice would be:
1. Do WFH with an established company with a successful model.
2. Have the contract reviewed legally.
3. Understand your rights—that likely the publisher owns this story—before signing a contract and make sure you personally accept these terms.
4. Research the WFH company and connect with writers who have worked for them.
5. Know up front why you want to do WFH. To make flat fee? Add to your body of work? Hope for great sales to bring other opportunities? All of these?
6. If you book does well and you are OK with the publisher owning your work, pitch them other story ideas.
7. Understand you likely will have to write the story very quickly–and know if you can produce quickly.
8. And don’t forget to negotiate terms/fee if you feel that is necessary but know they may not change them.
Hope this helps some looking to do WFH projects! Contact me with any Qs through my website contact page. :)
Thanks for sharing your experience.
Readers should note that in your (glad to hear, happy) experience, it was you who created the outlines. One wonders what the book packager brought to the process that you could have not brought yourself, presumably something? I’ve known and worked with some book packagers who did fine work and contributed greatly, but that isn’t always the case. Sometimes the packager’s contribution is thin indeed, no more than an agent would provide for a far, far greater cut of revenues. Just sayin’.
Thanks for sharing such an in depth article rich with info on WFH projects, Don!
And I should clarify that while I did create the outline for the publisher I had a wonderful experience with (and the editor also weighed in and guided me), I did NOT create for the outline for the book packager that I had the mixed experience with–they created that entire outline that I followed. So, that was another difference between the two companies. I’m glad I didn’t create that other outline as it would have been much more work on my end that did not result in a published book!
However, I also feel I had much more creative control with the WFH where I created the story outline mainly myself and the story was published. Satisfaction there!
Thanks for writing this post, Don. It really does shed light on a dark part of our industry.
As a professional editor and ghostwriter, I write and edit for money daily. Contracts are tricky. The vocabulary is seldom clear or in favor of the writer/editor, but there are legit arrangements out there. I make far more money as a professional editor and ghostwriter than I do from my personal publications.
You are right in suggesting caution is necessary. It’s all in the fine print, so we must do our very best to understand what we are signing.
Thanks, Don, for your ongoing insight. As usual, you gave me something to seriously ponder.
Hugs,
Dee
You’re so right, Dee, read and understand the fine print!
Don, thank you for weighing in on WFH and AW’s sad tale. I agree that many WFH contracts are unfair and I’ve walked away from some projects, even though the topic was something I loved. That said, most of my books are WFH for the school/library market and I’ve enjoyed working on them and being paid for them. However, it’s been so much harder to break into the trade market. I have only one book, a novelty board book, and I am so grateful my editor pushed for an advance against royalties. That book has sold over 100,000 copies. Many of the other WFH books have sold very well and a part of me wishes that they also had a royalty, but no matter. My self-publishing venture has had modest success–my novel reached hundreds of readers and I earned back what I spent on professional help within three months. But I realize I need to go the traditional route if I want to reach thousands. So I continue to work on my pet projects and submit them to publishers, with all my hope.
WFH was intended to apply to situation just such as you report, textbooks and educational programs and such. You got paid, felt happy, and that’s fine. But contrast that with your experience–and earnings–in the trade market. Yes, harder to break in but worth the struggle? I have operated my literary agency for 41 years, so that tells you how I feel about it!
What springs to mind is the ongoing debate surrounding the identity of the author of the Shakespeare canon.
The lost literary legacy of Edward de Vere, the 17th Earl of Oxford who wrote magnificent words under the pseudonym William Shakes-peare vs. the corrupt greedy power behind the throne of Elizabeth I, is not over.
The pseudonym Shakes-peare was derived from the goddess Athena who ‘carried a spear that she shook’ when she asserted herself. It backfired for Edward.
Today the controversy rages on from the defenders of a lucrative million-dollar tourist industry in Stratford upon Avon based on bogus claims who want to keep the exposed authorship lie alive to protect their incomes. ‘Bardology is a real entity’ with clout. Clout often rules.
Meanwhile, modern Shakespearean scholars whose predecessors, by the way, were initially hoodwinked by the same corrupt power behind Elizabeth Tudor’s throne that destroyed Edward de Vere’s legacy, forge on as the literary heads of most if not all major universities. They too, have a lot to lose in terms of status and financial rewards.
The main issue that destroyed Edward de Vere’s rights was Elizabeth’s failure to name her heir which meant the Tudor dynasty would end with no clear successor.
The true power behind Elizabeth’s throne, Lord Burghley, conspired to name a successor who would keep his family’s power intact. To this end, he favored King James VI of Scotland. His plot worked. King James VI of Scotland became king James I of England. And the nobles left in his wake, as always, scrambled for pride of place. The de Veres had much to lose if Edward revealed certain controversial truths. Having Edward disappear solved Burghley’s future as a power monger. A dirty deal was enforced. Edward caved and disappeared.
Civil war was a real threat and Edward de Vere was at the heart of preventing or creating it. So much for loyalty when a family’s name and reputation is at stake. So much for the powerful head of the family behind the throne who wanted to continue to influence the next monarch.
The usurper’s name, William Shaksper, was too coincidental to miss. And so, an ILLITERATE Stratford man, was an ideal scapegoat. Who knew it would get out of hand.
And here’s the kicker. Edward de Vere was also a lawyer! Well, actually TWO kickers – the de Vere’s family motto was ‘VERO NIHIL VERIUS’ nothing truer than truth!
Even so, nothing could save Edward’s literary rights once the stakes involving crowned heads were in play. Shakespeare may not have penned the phrase that absolute power corrupts absolutely, but he did write ‘kill all the lawyers’. Ironically, he also wrote ‘what’s in a name’.
Even the sainted crown of the Folger’s Library rests uneasy on the evidence of ongoing research. Will Edward ever be given his due? If ‘nothing is truer than truth’ wills out, that answer is yes. Four hundred years later, writers and actors are still fighting for a playwright’s rights, in Edward’s name.
Wow! Thank you for this post. I had no idea.
You had no idea because it’s absolute nonsense.
https://en.wikipedia.org/wiki/Oxfordian_theory_of_Shakespeare_authorship
I don’t think Edward De Vere signed WFH agreements. Copyright protections–and the possible sale of copyright–didn’t exist in those days. If it had, we might not be wondering today if Mr. Shakespeare’s actually wrote his plays and poetry. (Which, for one, believe he did.)
DAMN, Donald – thanks for the wakeup call! Yikes.
Good morning, Keith!
I’ve been in the game awhile, and I don’t mean to be a downer, but it seems to just be getting worse and worse for writers. I’ve done my fair share of WFH. In fact, I’m wrangling right now with an IP that I signed a contract with over a year-and-a-half ago. Fortunately, I have a terrific agent, but no agent can save you from what’s coming. And it’s what’s coming—for all of us—that spooks me most of all.
Right now, the movie production company Lions Gate is feeding its entire oeuvre into the dripping jaws of AI. Their aim is to have AI analyze what worked in the past and then to replicate it without having to pay those pesky writers and project developers.
Now, do I hold out much hope that AI will produce works of staggering genius? No. For such impressive technology, AI is surprisingly stupid. But that’s not the point, and mediocrity will never stop production companies from trying to produce more for less.
To borrow a phrase from Rodney Dangerfield, writers get no respect. We’re bottom of the food chain. And that’s a bitter realization when you’ve dedicated your whole life to writing.
I’ve had bestsellers, and I’ve had busts. But at no time have I felt supported by this industry. Believe me, I’m not alone in these sentiments. When I think about all my talented, brilliant compatriots, I could cry.
But this is the world we live in. I, for one, will always fight. All I can do is keep my head down and continue writing, even when I no longer recognize the topography of the publishing business.
Sad but true, Stacey. Those of us who’ve been in the biz for many years have seen the topography of the publishing business change so much we can get lost. But if we’ve held on this long, we can’t imagine a world for us that doesn’t include being a writer.
It’s not really a choice, is it? The compulsion to write is exactly what it is: a compulsion. Now, do I wish it had been a compulsion to code or sell synthetic financial derivatives? I won’t lie. The answer is yes. But you can’t help who you are, which is a writer, and neither can I. That’s what’s troubling and, perhaps, sad, isn’t it?
Stacey, I’ve been in the industry for 47 years altogether and, honestly, it’s been the case for all of that time that the situation for writers has been “getting worse”. I would say rather that industry conditions are always changing, but writers still write, and effective stories still reach readers. Maybe not in the same ways as before–hooray for digital audio!–but even so.
It’s when censorship starts that I’ll begin to worry.
Hey, you have a depth of experience even I can’t touch. Re: censorship, let’s just hope the P2025ers are sent back to the rock from whence they slithered. I’m damn glad to be voting out of Manhattan instead of my former state of Texas.
Thanks, Don. I did some non-fiction work for hire back in 2001-2004. I got paid, which was nice, but I quickly saw that there was no path forward and no way to enforce agreements without retaining a lawyer. It was, however, a first look at the business of publishing and the many pitfalls. It also put me back in my lane of writing fiction was has been a constant joy, even when it is a struggle.
Hope all is well with you!
All’s well on my end, Deb. And how are things with that novel of yours? (You know what I’m talking about.)
Thank you very much for this. It illuminates another small part of this gigantic publishing jungle.
It’s especially helpful to me, as I had very good experiences writing WFH for several consulting companies over about ten years. Primarily instructional material. I knew the people was working for/with very well, and they were trustworthy, so I probably would have trusted the next person, had the opportunity to do more WFH arisen. Now I know enough to be aware of the pitfalls and get legal help before signing anything.
So you probably won’t have to write a sad story about me. I look forward to your next WU post.
Sounds like you’ve always taken a business-like approach to your writing career. Bravo.
Hello Don. Your post has nothing to do with me, but it’s very alarming:
“’I was an idiot. I trusted someone.’ I would say rather that AW did not fully understand all that WFH means and where that would leave her if things in her situation went south. ”
My concerns are far less Byzantine: I’m afraid I might be risking my modest retirement savings by not getting written permission just to use product and place names. I’m told I’m more or less on safe ground if the use of such names in no way criticizes or defames the product/place/person. But my sources of information all hedge their bets–they aren’t completely sure, nor are they clear about how “fair use” applies. Very nervous-making. It would probably take months or longer to get written approval for all the casual references I make, so I’m rolling the dice. I hope by not hiring a lawyer I don’t end up on Woodward Avenue holding a hand-lettered sign or a tin cup.
Barry, you’re touching on a variety of topics, among them fair use, liable, permissions and so on. Big discussion for another time!
Thanks for sharing these words of caution, Don. I’ll share the post so other writers will see it.
In answer to your question, I did some WFH years ago for Rosen Publishing. It was a straightforward contract that clearly stated they would keep all rights to the books. I was paid nicely for my time in writing some rather short books on topics they assigned, actually more than I was being paid by newspapers and magazines at the time, so I was happy with the arrangement. I have/had other longer books with them that gave me a royalty share after a small advance.
This happened in the early 90s, and things were so different back then when dealing with a highly respected publisher.
So sorry that AW had such a horrible experience.
Maryann, your experience shows that when you’re dealing with fair and honorable people, even a WFH project can be a good experience. I wish that was every writer’s experience.
Hi. I am primarily a WFH writer. I’ve written hundreds of children’s books, and worked in amazing licenses. I’ve created new novels for existing worlds. I’ve won awards and had several NYT Best Sellers. And yes, most of my writing is flat fee, but I get paid – regularly – and I am making a living as a writer. While it’s not for everyone, WFH is an interesting side door into publishing.
The work is fast. Turns around right away. And though I don’t own the copyrights, I see my books on shelves. Lots of shelves. Added bonus, I get paid. For me, it’s an honor to work in these popular worlds and I am forever grateful that I found this path into publishing. I think the advice of being “aware” is always good, regardless of how you enter publishing. Each contract is unique and as the creative, defining your own boundaries is vital.
In 25 years, I have had very few problems (my heart goes to the writer in the article). I love what I do. There’s a great organization: The International Association of Media Tie in Writers. They’re there to help, support, and guide the WFH writer. If this is your path, like mine, it’s worthwhile to check it out.
I did WFH with a role-playing game company. I understood what I was getting into and it worked out for me. This was several years before self-publishing became affordable, so this was a good opportunity then.
I wouldn’t do it today, but I appreciated the experience I had.
In Australia, WFH has been expanding at quite a rate in children’s publishing. One author, famous for the first few books plus other TV ventures, has spawned an industry where eight series are all out there on the shelves, author’s name on every one of them but almost all written through some form of WFH. It’s become a badly kept secret. I have no idea of the contract terms, but I hope there is some kind of royalty built in as Australia has Public Lending Rights payments, but only if you receive royalties in your contract. So another twist in how WFH can end up being disadvantageous to the authors in countries where PLR operates.
You can also imagine how, in a small market, that many series/books simply crowd out many other great books. Bookshops only have so much shelf space. And publishers only publish so many books each year.
Thanks for the reminder to do a deep dive of due diligence before we sign.
This feels like crossing a river of ice where you don’t know how thin or thick the support is beneath you. 30K is a lot of hard work to lose as well as the concept which is even more valuable, so I truly feel heartbroken for AW–but the question I have is why? Please forgive my naïveté, but why does an author want to enter an agreement where they don’t own the characters or certain story components of their work? I understand that book revenue is not up to what most hope for…so is this primarily a path to creating something for film? I understand the competition for a traditional publishing contract, and maybe that might be the attraction but the risk seems so great. Thank you for making us aware. Your insight is much appreciated.
This is appalling–my heart goes out to this author. An example of how often contracts are rarely designed to favor or advantage the author, and how careful writers have to be with what they sign. I’m so glad you posted this–I’ll be sharing.
My students brought this post to my attention.
I’ve done several WFH projects with major companies (Disney, DC Comics, Scholastic), and I’ve enjoyed all of them. But in each case several things were true:
• I knew it was WFH going in, and made myself very aware of the terms on front and backend.
• Each of them allowed me to play with IP, other people’s toys, that I would not have otherwise been able to play with.
• I was very aware that what I was creating was going into the Pot of Canon, not the World of Maggie Stiefvater, no matter how well the things I created did.
• All of them offered me a chance to scratch itches I couldn’t with my original works. i.e. play with tones, age ranges, characters, creators that I wouldn’t be able to do with my original works.
• I had a tremendous amount of freedom to be myself within that IP, so I could be proud of the product.
• I did not expect IP to be easier than an original work.
• At the royalty rates IP offers, I didn’t expect the projects to earn out, so I was sure to only agree with a contract if the advance itself was satisfactory, since it would likely be the only money I saw.
• I didn’t expect the IP to bring me new readership or otherwise change my original-works career, assuming that original works generally prompt more opportunities for original works, and IP works generallly prompt more IP opportunities.
• I have a wonderful agent who would have helped me understand the terms if I wasn’t already familiar with them.
If any one of these components was missing, I can imagine my level of satisfaction would have been very different. I think IP is an interesting and useful corner of the industry. Wildly misunderstood, but interesting. It’s ripe for abuse and hurt feelings, but it also allows many kinds of projects to exist that otherwise couldn’t, satisfying readers who might not otherwise ever pick up a book that year.
A very good and informative post.