17 February 2008


Over at Neil Gaiman's fine blog (and if you're an author, and you have an interest in the realities of the writing world — or if you're interested in intermittent proof that authors can too be great parents with well-adjusted kids — you should immediately add it to your personal blogroll if you don't already read it), one of his readers asked, and he replied:

Help! I'm in need of legal advice regarding ownership rights in collaborations, particularly an artist and writer. Is there a trustworthy online resource about such matters, either for free advice or to locate reputable counsel? Thank you.
— Kay

Not that I know of, but I'll post this in case someone has any suggestions. (The Scrivener's Error blog, over at http://scrivenerserror.blogspot.com/ is very useful and smart. But it is a blog.)

(16 February 2008)

First of all, thanks for saying this blog is "very useful and smart." Note the other — subtle — caveat Mr Gaiman quite properly includes: This is not legal advice. No blog, or publicly available location on the 'net, or book, or anything else that is not specific to your situation, is legal advice. It is at most commentary that can be used to narrow things down for your own counsel, or more likely just narrow down your choice of counsel. Anyone who pretends otherwise is just a little bit misguided.

Second, reading between the lines, I infer that this person has already engaged in a collaboration between an artist and a writer. The first place to go in such circumstances is not to a local lawyer who does not know both the core law and the practices of the publishing (and, more broadly, entertainment) industry,1 but to the Volunteer Lawyers for the Arts. Even if VLA cannot directly help with a situation, the VLA does have lots and lots of resources for people in the arts. If you're at all serious about publishing or displaying or even just appreciating art, bookmark these two pages:

Third, the first question that any lawyer is going to ask is "What does your contract say?" That's right: There really, really needs to be a written agreement, and it really, really should be entered into as soon as possible — and preferably before beginning any work. This is not just a matter of business prudence; it also implicates copyrights, wills and intestate succession, taxes, property settlement in divorce, and a wide range of other issues. Remember the old Fram Oil Filter commercials — "You can pay $5 for a new oil filter now, or you can pay hundreds for a new engine later"? That is, if anything a gross understatement when it comes to collaborations.

Fourth, there's a practical issue. It is extremely rare — even in comics and graphic novels — for commercial publishers to take an author-and-artist combination that comes in off the street. For a variety of reasons, both legal and historical, both good and (mostly, but not entirely) bad, publishers prefer to make that match themselves. Mr Gaiman is one of the obvious exceptions; he could walk in to a publisher with a collaborative work and get the collaboration examined on its own merits. Mr Gaiman also has well over two decades of commercial and artistic success in collaborating with artists in the publishing and entertainment industries, and works with artists who are equally aware of the practical and commercial limitations imposed by the industry's structure (for example, how to determine which pages of a partly color interior can be color for efficient press runs).

I hope this is helpful.

  1. The reality of law practice is that lawyers are far more specialized than the medical profession. When is the last time you heard of an ear, nose, and throat doctor who works only on the left side of the throat? That is exactly what "personal injury" is, though; a lawyer who claims to do personal injury work almost certainly works only on the claimant's (plaintiff's) side, and very well may not handle either worker's compensation and Social Security disability claims (the nose) or medical malpractice (the ears) claims at all. The regulatory authorities, though, still believe that the word "specialist" is inappropriate for lawyers, because it might deceive the public into believing that there's some additional certification involved. Phhhht! I believe the opposite. Perhaps in the early 1970s, that might have been true; these days, however, the word "specialist" and the phrase "specializing in" are thrown around for so many things that it largely means "has more experience in x than the average bear." If an NFL punter is a "specialist"... you get the picture.

    The real point is this: Y'all may not need a "fancy New York entertainment lawyer." What you definitely do not need, though, is the "family lawyer" who did your real estate closing, or handled your last traffic matter, or dealt with that unfortunate situation involving the neighbors' yapping dog, offering an uninformed "generalist's" opinion on a highly specialized area of law. To begin with, there's a very high probability that a generalist won't even consider choice of law... which is very, very significant in this context.