Recently, one of my clients had an ownership issue over a ghostwritten article. A ghostwritten article is content that’s written by someone else, a ghostwriter, which you then post or publish as your very own. This article discusses who or what entity owns the copyrights to a ghostwritten article and ways to avoid pitfalls that may come up when working with ghostwriters.
The ownership of ghostwritten articles is governed by copyright law. Under US Copyright law, the ownership of ghostwritten articles and any other work is governed by 17 U.S.C. § 101 (“Section 101”). Under Section 101, only the author or those deriving rights from the author can rightfully claim copyrights to a particular work. So if an article – such as a ghostwritten article – is not written by you, then the ghostwriter may own the rights to the article.
To make the determination as to who owns the rights to works or ghost-written articles, we look to the definition of “a work made for hire” in Section 101. In certain cases, a ghostwritten article may be a “work made for hire.” Section 101 defines a “work made for hire” in two groups. Section 101 states that a “work made for hire” may be as follows:
1) a work prepared by an employee within the scope of his or her employment; or
2) a work specially ordered or commissioned for use
- 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,
- or as an atlas,
The above applies if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
Based on Section 101, to determine if you own content written by a ghost writer, first you need to determine whether the ghostwriter is an employee writing content within the scope of her or his employment. To determine if your ghostwriter is an employee, one looks to agency law. Listed below are some factors to determine if a ghost writer would be an employee.
- Control by the employer over the work.
- Control by employer over the employee.
- Status and conduct of employer.
Second, if the ghostwriter is an employee, you would need to determine if the work was done within the scope of her or his employment. Scope of employment is typically defined as the range of activities and conducts that an employee is reasonably expected to perform as part of her or his job. Examples of works made for hire created in an employment relationship include the following:
- a software program created by a programmer within the scope of her or his duties at a software firm;
- a newspaper article written by a staff journalist for publication in the newspaper that employs the journalist (who is not a freelance writer);
- a musical arrangement written for a music company by a salaried arranger on the company’s staff; and
- a sound recording created by salaried staff engineers of a record company.
If you have determined that the ghostwriter is an employee and she or he wrote the ghostwritten article within the scope of her or his employment, then you or your business would be the owner of the copyrights to the article. Things get a bit trickier when the ghostwriter is not an employee, or the ghostwriter’s content was not written within the scope of her or his employment.
Let’s assume the ghostwriter did not write the ghostwritten content within the scope of her or his employment and was not an employee. In this case, the copyrights to the ghostwritten article would need to be transferred by a written agreement to you or your business. Practically speaking, it is much easier to get the ghostwriter to agree to transfer the rights to the ghostwritten article BEFORE you pay them.
If you are not able to get the ghostwriter to agree to transfer the copyrights to the ghostwritten content, arguments may exist that provide you with rights to the content. For example, one may be able to argue that you have ownership interest in the copyrights to the ghostwritten content because the work is merely part of a “collective work” or “compilation” in which you have ownership rights. However, this is where things tend to get messy. It’s best to try and avoid this scenario altogether, which is why we advise our clients to have a properly drafted agreement between you and the ghostwriter before the ghostwriter puts pen to paper.
Key Take Aways:
First, know the differences between an employee and an independent contractor.
Second, understand what is considered work done in the scope of employment at your place of business.
Lastly, when in doubt, have the ghostwriter agree in writing to transfer to you the rights to the ghostwritten content (preferably, before payment exchanges hands).
The attorneys atThe Plus IP Firmhave extensive experience in advising clients on copyright matters and litigating copyright disputes on behalf of copyright holders, businesses, and parties to copyright agreements.Copyright contracts are but one of the many legal tools we prepare for clients who want to protect their works of art, creation, business, and reputation. To learn more about The IP Plus Firm and how we protect our client’s intellectual property, please clickHERE.This article was written by Dillon Kashat and Derek Fahey. To learn more about Derek Fahey, please clickHERE.
FAQs
If you don't have an agreement or contract, the law states that the author or a work owns copyright meaning the writer. The ghostwriter will retain the copyright in the work unless an agreement or contract states otherwise.
Who owns copyright on a ghost written book? ›
§ 101 (“Section 101”). Under Section 101, only the author or those deriving rights from the author can rightfully claim copyrights to a particular work. So if an article – such as a ghostwritten article – is not written by you, then the ghostwriter may own the rights to the article.
What are ghostwritten articles? ›
Simply put, a ghostwritten article is a piece of content that's written by someone else, which you post as your very own. Professional ghostwriters have a savvy way of sliding into different writing styles and brand personalities, depending on the needs of their clients.
Why is ghostwriting illegal? ›
In these cases, a ghostwriter writes papers and presentations that are then published with the name of a person who didn't actually do the work. This isn't just misleading: it constitutes a form of plagiarism, misconduct, and cheating.
How can you tell if a book is ghostwritten? ›
The most obvious sign is when there are two authors named on the cover or title page. As in: by Very Famous Person with Joe Bloggs. More likely than not, Joe is our ghost. However, if Very Famous Person is alone on the cover, take a look at the acknowledgements inside.
Do ghost writers get money? ›
Aside from these extraordinary deals, on average, a ghostwriter can make between $10,000 – $50,000+ for a nonfiction book or memoir. For blog posts or articles, ghostwriters can easily earn between $150 – $500+. Remember that the rate can vary based on word count, your skill set, and/or the client's budget.
Do ghost writers have copyright? ›
Thus, the person who commissioned the work owns the actual work, but the copyright remains with the creator unless there is a contract stating otherwise. “Despite ghostwriters generally owning the copyright over their works, they are also required by their contracts to waive their moral right of attribution under Sec.
Why is ghostwriting okay? ›
There is a reason that the idea of ghostwriting has progressed to become a commonly accepted job with no embarrassment attached. As long as it is a true collaboration with no trace of deception it is a tremendously effective way of getting the story of one individual onto the page in a memorable and compelling way.
What does ghostwritten work mean? ›
If a book is ghostwritten it means that the author didn't do the writing themself. That doesn't mean they didn't have a major input into the book. If it's a business book or self-help guide, their expertise will form the basis of the content.
Is Ghost writing good? ›
Ghostwriting can be a good way to begin a writing career, as it allows you to gain experience and build a portfolio while earning money. However, it's important to keep in mind that ghostwriting involves writing for someone else, rather than writing under your own name, so you won't receive public credit for your work.
Yes. Ghostwriting is extremely common, particularly in the world of non-fiction books. Ghostwriting services are the same as having any other service delegated to an expert. In other words, hiring a ghostwriter is in most ways similar to hiring any other professional service.
Can a ghostwriter steal your story? ›
So, while the fear of a ghostwriter stealing your story may be valid, the truth is it's highly unlikely to happen. With a strong contract and mutual respect for confidentiality and intellectual property rights, the author and ghostwriter are meant to foster a successful and harmonious collaboration.
How do ghost writers get paid? ›
Per Hour. Some ghostwriters charge by the hour, typically between $25-$100 per hour. However, per hour fees are less common than per word rates, since the client cannot accurately judge that you are using your time wisely. Hourly engagements are better suited for editing existing material vs.
Which celebrity books were ghostwritten? ›
Applegate's Animorphs series has had creative forces helping them such as Lisa Harkrader and Kimberly Morris. Moreover, beyond the realm of fiction, autobiographical works such as Andre Agassi's 'Open' and Chris Gardner's 'The Pursuit of Happyness' were artfully crafted by ghostwriters.
Why do celebrities use ghost writers? ›
People from all walks of life and all professions seek out ghosts because they have a story to tell and need to get it told. Getting a book ghostwritten guarantees the highest quality of writing, in a beautifully crafted and commercial book, which is produced in the shortest time possible.
Are ghost writers anonymous? ›
Usually, there is a confidentiality clause in the contract between the ghostwriter and the credited author (or publisher) that obligates the former to remain anonymous, or obligates the latter to not reveal the ghostwriter.
Do authors have to disclose ghost writers? ›
Non-Disclosure Agreements
As soon as the Ghostwriter agrees to the contract, they must sign a Non-Disclosure Agreement, which is a legal document that both parties are beholden to. The NDA details don't just specify what the Ghostwriter shouldn't do, but what they're hired to do as well.
Are ghost writers illegal? ›
The fact is, ghostwriting is legal specifically because it's a willing agreement between two parties: The ghostwriter agrees to produce content within the constraints and about the subjects required by the contractor. The contractor agrees to compensate the ghostwriter for their work.
Can you publish a book written by a ghostwriter? ›
This includes your ideas, outlines, and any research you've already done. The ghostwriter will then write the book for you, and you'll be able to review it and make changes before it's published. If you're not sure whether hiring a ghostwriter is the right decision for you, consider the benefits of doing so.
