Who Is the Author?

Almost all freelancing today is ghostwriting of some sort--either ghostwriting through developmental editing or ghostwriting directly. Although there are still many traditional freelancing jobs, the immense number of freelancing projects that have flooded the market lately are done anonymously. Many freelancing contracts, including my own, explicitly state the rights pass to the employer and then mention that the project is a work-for-hire. I think this is why many employers begin to think they are the "author" of the work. This is not true. 

First, although my contract explicitly states the project is to be considered a work-for-hire in order to reassure my employers, it does not and cannot meet the definition of that term according to the copyright office guidelines. Because "work-for-hire" is kind of a misnomer, people assume it means that if I hire someone to write something for me, it belongs to me. The problem is, the "hire" part means you hire me--as a part-time or full-time employee and provide all the benefits including paying some of my social security taxes and withholding tax money for me. The term "work-for-hire" means that Disney or WebFX hires me and anything I write in the course of my job for them belongs to them--not me. You can also apply this to very specific works in the actual freelancing world, but these are not the types of works you are asked to write as a freelancer and in general they are works that would require multiple freelancers to put together simply because of their vast nature. 

Does that mean when you hire me you are going to get in trouble and you don't own the copyright. No--however, I can only say no for myself because I do require you to accept the terms of my contract before I will work for you. Many people see my long contract as something scary. In fact, it protects both me and my employer. My contract is a work-in-progress, but it specifically states that all rights to the work pass to my employer until the death of my employer. This statement, not the work-for-hire statement, gives my employer the right to do what he or she wants with my work without fear of me preventing them from doing so. It also prevents me from using the work again, except for samples. (The only reason I can use samples of the work is because this is another clause in my contract. The clause also states that I will not use samples of the work if the employer notifies me not to do so). 

But, the fact is that even if you are the copyright holder, you are not the author. Do you have to put my name on the work? No, actually you can't. Another clause in my contract prohibits this unless you have express written permission. You cannot use my name, likeness, etc. to promote or endorse your book (even though I wrote it). If you do this, then I automatically regain the copyright. This is the only way I can control who uses my image and my name. 

Technically, the only way you could acknowledge me and avoid "plagiarism" under the terms of my contract (without getting my written permission) is by stating the book was written by a ghostwriter without naming me (but no one does this) or you could publish it under a pen name that you only use for works created by me. 

My contract is relatively solid and designed to protect both me and you. If you hire Joe Smoe or Abrahim Ad-Abdul, and they don't have a contract with you, where does that put you? If you don't have a contract, the author owns the copyright on production of the work. If you don't have a contract, that copyright is not passed to you. The thing is that Joe and Abrahim probably don't realize this. They probably think you have the copyright to their work simply because you paid them. You could also probably make the case that you own the work if they stated somewhere in writing to you that you would own all the rights as long as you have a copy of that statement and can prove they wrote the statement. But chances are good even without a contract Joe and Abrahim are not going to come after you and try to prevent you from publishing their stuff. You paid them after all.

The only time you would be in trouble without a contract is the rare chance that your book becomes a New York Times Best Seller. If you are making millions of dollars off of something you paid $75 to get, and you don't have a contract, and the author finds out you are making millions of dollars off that work, the author could technically sue you for that money or a portion of it. 

There is one other time where you could be in trouble hiring a ghostwriter and not attributing the actual author. This is in the academic realm. It happens. I have written scientific papers based on research provided to me by my employer. These were then published in academic journals--without my name. In fact, I was never even asked if I would like my name included. The chances of anyone finding out are close to 0%. I am not going to tell, and I doubt the attributed author(s) would tell. But if a fellow academic finds out you are having your papers ghostwritten and you are not at least attributing the real author, you face the chance of losing your job. The irony is that adding an extra person on the author list is generally not something frowned upon. So, if you ask someone to ghostwrite your academic journal submission, ask them if you can use their name to keep yourself fully covered. Again, holding the copyright to something and being the author are two different things.