Hiring a Ghostwriter

Should you hire a ghostwriter? One of my blog followers sent me this question as a suggested blog topic:

Question: “Can a ghostwriter display the material they created, as part of their resume and website portfolio?

Answer: The short answer is “it depends”. But the truth is, when it comes to the law, there is NEVER a short answer because legal answers are always contingent on #1 – the specific facts of a case, and #2 – the applicable law in effect at the time.

The general rule of law regarding copyright ownership states that the person who creates the original work of art/authorship and reduces that work to a tangible form is the person who owns the copyright in that work.  (See Copyright Protection).  

But what if you didn’t create the work, but instead, you hired someone to create the work on your behalf? Then you, as the purchaser, MUST have them sign a well-drafted, enforceable “work for hire agreement”, which essentially transfers the rights in the work to you the buyer. If you don’t do that, you will not be able to lay claim to the copyright, unless you are prepared for a good fight—often leading to litigation.

So with that in mind, let’s look at 3 hypothetical scenarios:

1. You live in California and you’ve hired a ghostwriter to write your book. The ghostwriter is located in New York. You did not ask the ghostwriter to sign a contract, which in some way resembles a “work for hire” agreement. Can the ghostwriter use the material they wrote for you in their resume and on their website, as proof of their talent? The short answer based on these limited facts is “YES”.  Why? Because an argument can be made that the ghostwriter owns the work, and therefore can use it in any way they see fit. But again, this depends on all the facts of the case, plus the law of either New York, California or a possible third location (where the transaction took place). Contract law is determined by each individual state, so it’s important to know the rules of the state(s) where you do business.
   
2. Let’s assume the same facts as above, except you had your ghostwriter sign a “work for hire” agreement. This one small detail can change the outcome. In this case, based on these limited facts, an argument can be made that YOU, and not the ghostwriter, own the rights to the book, and therefore the ghostwriter cannot, without your permission use the material. A transfer of copyright has occurred.
   
3. Same facts as above: you live in California and the ghostwriter you hired to write your book lives in New York. The ghostwriter signed a “work for hire” agreement, which included a license provision allowing the ghostwriter to display and duplicate designated portions of the book on his website, for marketing and promotional purposes only.  Here, YOU own the copyright in the book, however, you have given the ghostwriter permission (a license) to display their work only on their website for marketing and promotional purposes only.

So what is the takeaway?  Always have a written agreement with everyone you hire to write content for you, no matter what form the content takes, e.g., books, articles, blogs, eBooks, Special Reports. Otherwise, you risk losing your valuable intellectual property rights, because the ghostwriter can make the argument that THEY, and NOT YOU own the rights to the content.

Until next time, I’m Attorney Francine Ward providing you with the legal information you can use.

Francine D. Ward

Feel free to send me your questions and I’ll answer as many as I can in upcoming blog posts.

fRANCINE d. wARD

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