Copyright and Ghostwriting

The ethics of ghostwriting are often the subject of much debate. Though often seen as plagiarism, such as with the battle over Christiane Serruya story, it remains a common practice for many books and creations in general.

Simply put, there are times where, despite someone’s name appearing on the cover of a book, there’s no sincere audience expectation that they actually wrote it. This is also true for many speeches, celebrity social media accounts and so forth.

But all of this raises an interesting question: Who owns the copyright of a work when the name attached to it is different from the person who created it? If copyright normally rests with the creator of a work, how is ghostwriting handled from a legal perspective?

The answer is both simple and complicated at the same time. However, a good place to look for the answer to that question is in Bangladesh, where a recent case highlighted just how muddy these waters can be.

The Spy and The Copyright Office

In Bangladesh, the Masaud Rana book series of espionage thrillers is as popular as it is prolific. First launched in 1966 and continuing today, the series has more than 460 novels under it.

While the books are attributed to author Qazi Anwar Hussain, it’s an open secret that the books themselves are actually produced by a group of ghostwriters with many fans saying that they can tell which author wrote which of the books.

One of the main ghostwriters, Sheikh Abdul Hakim, recently filed a petition with the country’s Copyright Office to attempt to gain control of the copyright over the 260 books he had penned. According to Hakim, there was no contract or agreement in place between him and the publisher and, as such, the copyright in those books should transfer to him.

The Bangladesh Copyright Office ultimately agreed with him and granted him the copyright in the books he wrote, which included 50 books in a separate series. According to the Copyright Office, Hakim was neither an employee nor a staffer of Hussain or the publisher and there was no freelance contract.

As such, there was nothing to stop him from claiming copyright in the books and nothing to prevent him from collecting royalties for his work.

But while it’s an interesting case it’s also an unusual one. Such squabbles over the copyright of a ghostwritten work are surprisingly rare. The reason is quite simple: Most of the time, there IS some sort of contract.

It’s All About the Contract

Hakim’s case is very much the exception, not the rule. Most of the time, ghostwriters do not reserve any claim in the copyright of the work they produce. The reason is that most ghostwriters have clearly laid out terms that prevent them from later trying to claim ownership of the work they produce.

This happens one of two ways:

1. Direct Employment: Often times ghostwriters are direct employees for whomever they are writing for and it is very much their full-time job. For those writers, the copyright in the work they make as part of that employment goes directly to their employer.
2. Freelancer Contract: If the ghostwriter is a freelancer, then the contract that they sign will either designate the work as a work for hire (if appropriate) or will otherwise state that the copyright is to be transferred to the person paying for the work.

It’s only in situations like Hakim’s where he is not an employee and there was no contract that a ghostwriter can come back and claim ownership of the work they did. However, even then, it’s not a guarantee.

In the United States, the courts have to look at what both parties intended based upon their actions and try to draw some kind determination of who should own the rights. It’s a messy, complicated process that often leaves neither side happy.

However, those situations are very rare overall.

That said, all of this highlights the importance of being careful when approaching ghostwriting contracts and agreements. It is especially crucial that such agreements spell out who owns the end product. While this is true of all freelancing agreements, with ghostwriting arrangements the danger is especially potent as the person whose name on the work may end up not owning or controlling it.

Bottom Line

Ultimately, a ghostwriter isn’t significantly different from any other freelancer or hired writer. The ownership of the piece hinges upon the simple questions of whether they are an employee and, if not, what the terms of the contract were.

Things only get messy when either there is no contract or the contract is poorly written. Contracts are ultimately about setting expectations between the parties and, when those expectations are not clearly understood, problems arise. That’s true across all areas of law.

Still, ghostwriting feels very different because there’s the very real danger the person who is listed as the author of a work may not end up owning it. As such, if you’re recruiting a ghostwriter, it’s crucial to be extra careful to nail these contracts and make sure everything is thoroughly understood.

Otherwise, the situation could turn very messy, very fast.