Do ghost writers have a claim of copyright? I am seriously wondering. Can a ghostwriter have a claim of copyright when they redact your work? Let's say they write a novel out of your manuscript, what would be the possibilities? Let's say that you didn't have a manuscript, is their claim of copyright much stronger? I am thinking if you tell them to write a novel and you don't contribute in any way, they would have 100% of the rights. Let's assume the country is the United States.
This depends on the agreement between the person commissioning the work and the ghostwriter; but it is entirely possible that the ghostwriter would have no claim of copyright if it is a "work for hire". This circular (PDF) from the US Copyright Office lays out the possibilities.
Under the US Copyright Act, a work may be considered a "work for hire" if it is:
a work prepared by an employee within the scope of his or her employment; or
a work specially ordered or commissioned ... if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
If (in the second case) the commissioner and the ghostwriter sign a written contract saying that the work is a "work for hire" (see p. 3 of the PDF), then the commissioner gets the copyright, not the ghostwriter:
- If a work is a work made for hire, the employer or the party that specially ordered or commissioned that work is the author of that work.
- If a work is made for hire, the employer or the party that specially ordered or commissioned that work is the initial owner of the copyright in the work unless the employer or the commissioning party has signed a written agreement to the contrary with the work’s creator.
However, it is also possible for ghostwriters to negotiate some rights to their own work in the contract process. This FAQ describes one possibility:
Question: How can I bargain for a better ghostwriter agreement?
Answer: If you are commissioned to create a work, and you don’t feel comfortable signing a ghostwriter for hire contract (perhaps you want to use the characters you create for another project, etc), then you can negotiate to grant less extensive rights and sign a “freelance writer for hire” agreement instead. Limit the amount of time the Client owns exclusive rights, whereby you can initiate a termination of transfer. If this doesn’t fly, bargain for more money. You may also propose that if the Client decides to abandon the project, then the copyright can revert to you.
In principle, if the ghostwriter used any creativity, then they have copyright in their work. Usually a ghostwriter would be writing the complete work, based on information they were given, and be the complete copyright holder.
However, usually there is a contract that states that the copyright will be transferred to a publisher, or to the person whose name will appear as the “author”, at the earliest possible time.
In Germany there is an additional “right of authorship”: The right to claim that you wrote it. Only the person who created a work has this right (in this case the ghostwriter), and it can’t be transferred or sold, and has no financial value.
US Copyright and the Agreement
As the answer by Michael Seifert correctly says, this depends on the agreement between the ghostwriter (G) and the person commissioning the work (C). There are several possible situations:
- G is an employee of C, and the work is done as part of that employment. In this case C is legally the author of the4 work. G has no rights to the work at all, unless a written and signed agreement between C and G give G rights.
- C has specifically commissioned G to make a work in a written agreement. They include in that agreement that the work shall be a work made for hire. The work is "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". In this case C is the author, and G has no rights except any in the agreement, just as in case 1.
- C has specifically commissioned G to make a work in a written agreement. They do not mention "work made for hire" in hr agreement, or the work is not one of the types listed in case 2. They agree that C will hold the copyright. Then G will be the legal author, and the copyright expiration will be 70 years after G's death. But the copyright will transfer to C as soon as the work is created, and G will have no further rights (except the termination right under 17 USC 203, and possibly moral rights under 17 USC 106A) unless the agreement grants G some rights.
- C commissions G to make the work, but none of cases 1, 2, or 3 applies. Perhaps the agreement is not in writing, or does not specify that C will own the copyright. In this case G will be the legal author and will own the copyright unless and until G sells or otherwise transfers it. C will have whatever license or rights are granted in the agreement. If the agreement does not specify what rights C is to have, C will have at least sufficient rights, probably in the form of an implied license, to accomplish the purpose for which C commissioned the work, provided that those do not amount to a transfer of the copyright. G and C may later agree on a further license, or a transfer of the copyright, under whatever terms they may agree on, but G is under no legal duty to make such an agreement.
- There was no advance agreement. G created the work and offered it to C. The outcome is much the same as case 4. G is the author and holds the copyright until G sells or transfers it, whether to C or anyone else.
In cases 3, 4, and 5, but NOT 1 and 2, G will have "moral rights" under 17 USC 106A, if and only if the work is a "work of visual art". Note that a work is a "work of visual art" only under specific, narrow conditions, which include being signed by the author, and being part of a single-copy edition, or a single limited edition of no more than 200 copies. Otherwise there are no moral rights under US copyright law.
In cases 3, 4, and 5, but NOT 1 and 2, G will have a termination right under 17 USC 203 This allows G to terminate any licenses and transfers, and regain exclusive ownership of the copyright during a period of 5 years starting 35 years after the granting of any rights in the work, or in some circumstances 35 years after the publication of the work. This termination right cannot be waived or transferred by any contract or agreement. If the author is dead, the section specifies who owns and may exercise the termination right. At least two years notice of a termination under this section must be given before the effective date of the termination.
Specific provisions of US Law
Work Made for Hire
17 USC 101 defines a "work made for hire" as either :
(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, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
Work of Visual Art and Moral Rights
17 USC 101 defines a "work of visual art" as either:
(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or
(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.
A work of visual art does not include—
(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;
(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;
(iii) any portion or part of any item described in clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this title.
17 USC 106A provides:
(a) Rights of Attribution and Integrity.—Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—
(1) shall have the right—
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
(3) subject to the limitations set forth in section 113(d), shall have the right—
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
(b) Scope and Exercise of Rights.—Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work.
Initial Ownership nd Transfer of Copyright
17 USC 201 provides mtht:
(a) Initial Ownership.—Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.
(b) Works Made for Hire.—In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
d) Transfer of Ownership.—
(d) (1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.
(d) (2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.
17 USC 104 (c) provides that:
(c) Effect of Berne Convention.—No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto. Any rights in a work eligible for protection under this title that derive from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto.
I include this because some other answers or comments on the question or the answers mentioned the Berne Convention as providing certain specific rights. Not under US law.