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35JURISPRUDENCE
GHOSTWRITERS AS A LEGAL PHENOMENON. FEATURES AND PROSPECT OF LEGAL
REGULATION OF THEIR ACTIVITIES
Zaytseva N.
Ph.D. Associate Professor at the Department of Legal Support for a Market Economy The Russian Presidential Academy of National Economy and Public Administration
Abstract
This article is dedicated to the use of hired labor in the sphere of intellectual work, primarily in literary work. The use of ghost-writers to produce literary works has created a legal phenomenon where the object of contractual relations is an inalienable non-proprietary right - authorship, the assignment of which in many legal systems is impossible and in others although there is no explicit prohibition, legal regulation of such assignment is absent. However, the existence of ghostwriters cannot be viewed as a uniquely modern phenomenon, it has simply taken on new forms and taken a special place not only in the literary but also scientific sphere. Hence creating legal mechanisms for the use of ghost-writers and regulating their activity appears to be a more effective option to regulate the sphere of intellectual property rather than creating a system of bans.
Keywords: copyright, authorship, alienation of individual non-proprietary rights, ghostwriters, plagiarism, special features of regulation of moral rights, literary ethics.
The division of author's rights into personal proprietary and non-proprietary rights became the foundation for the consideration of proprietary relations in the sphere of copyright as an independent object of civil law transactions of commercial nature. One of the distinctive features of these legal transactions are the entities taking part in the transaction, where the party conceding proprietary rights is the author - the person who created the work. For the purpose of this article copyright to literary works in fiction and the sphere of scientific literature is primarily discussed. There are several contract models that exist for authors, including the standard creation of literary work on order or within ones employment duties (e.g. when the creation of a literary piece is paid for in advance by the employer or publisher, with the eventual transfer of proprietary rights to given literary work). The situation with the personal rights of authorship is different because they cannot be the objects of a contract due to their inalienability from the author. Of course, an author can give his authorship to someone else, but this is not considered in the legal way and if the author eventually changes their mind and is able to prove their authorship - there is no way to legally legitimize the initial waiver of rights.
There are many examples of the use of wage labor in the sphere of creative activity, such as information that frequently appears regarding the work of several authors under the name of William Shakespeare, the use of the work of other authors by Alexandre Dumas etc. However, because this information has not found confirmation in the history of world literature the aforementioned writers are considered to be the authors of corresponding works.
Currently, with the changes in the market environment of the publishing business and the increase in methods and forms of authentication the authenticity of
the authorship of a particular person is more often called into question, especially in the field of scientific literature, where it is quite common to use the resource of junior researchers, including for the purpose of maintaining the reputation of senior researchers. Various legal systems have different approaches to the issue of assignment of the rights of authorship, which is a fundamental non-proprietary right. In the continental system of law, it is impossible to assign rights of authorship from one subject to another within a civil law transaction. That is why the appropriation of authorship is viewed in the context of criminal or administrative law. This is the legal essence of the division of authorship rights into proprietary and non-proprietary rights: it is possible to concede any commercial rights to an object of intellectual property but not authorship. The use of someone's intellectual labor under another's name is considered plagiarism or counterfeiting. Common law is more flexible regarding this matter due to a more generally accepted principle of freedom of contract. A written conclusion of contract resolves the question of authorship as soon as the contract ceases to be confidential. A written agreement can solve the problem of the financial compensation of the author, but it cannot solve the problem of maintaining secrecy regarding the true identity of the author. That is why authors are often recruited on the basis of oral agreements that later are viewed as contractual obligations.
The fact that British courts occasionally deal with disputes connected with contractual relations concerning the assignment of authorship illustrates that in Common law certain attributes and conditions of such legal models have already been formed. The case of John Sadler v George Reynolds (2005 EWHC 309 (QB))1 can be viewed as an illustration: John Sandler demanded compensation for damages in connection with George Reynolds' breach of contract according to
1 John Sadler v George Reynolds (2005) EWHC 309 (QB) http://www.bailii.org/ew/cases/EWHC/QB/2005/309.html
which John Sandler was the "ghost-writer" of the defendant's autobiography. Usually this court decision is used as an illustration of proof of the intention of sides to form legal relations. Because the agreement was oral and was based on a certain friendly relationship it was viewed as an agreement formed for personal purposes, where the lack of intention to sign a legally binding contract is presumed. The main issue that occurred in this process was the disproval of this presumption. However the following circumstances are interesting: first, the presence of a legal mechanism of assignment of authorship within the framework of an agreement to produce a biography written by a ghost-writer even though the autobiography was not written in full - the legality of such an agreement was never under question. Second, during the dispute John Sadler declared that he had been a ghostwriter for well-known sports figures Brian Clough and Vinnie Jones. This information was neither confirmed nor denied, furthermore this circumstance was confirmation of the serious commitment of John Sadler as a ghostwriter, because he had written several books "autobiographies" of sportsman. That said the court ruling did not have any consequences for the status of said biographies, their authors are currently stated as Brian Clough and Vinnie Jones. All these facts confirm not only the existence of such legal relations but also their legitimacy.
In continental legal systems the problem is approached in a different way. In the USSR the maximum remuneration for a writer came not from sales of a literary work but from awards in literature such as the Lenin and Stalin awards. That is why most disputes and court trials dealing with authorship were in relation to literary works that were nominated for or had received state literary awards. The impossibility to hire another writer to create a literary work, except in the oral form of agreement between sides based on mutual trust, helped create very original legal constructs. For example, in discussions regarding awarding the Stalin literary award to the novel of J. K. Iosseliane "Notes from a submarine officer", translated from Georgian by Kremlev I. it was uncovered that the novel had been in fact written by Kremlev and was based on Iosseliane's recollections which he could not recount in the necessary literary form2. Sides decided to minimize their risks in the following way - one side received authorship and the other refused compensation, at the same time Kremlev received proprietary rights to the "translation". Moreover, a separate agreement existed in the case of the novel receiving the Stalin literary award, which the writers agreed to divide a certain way. They notified fellow writer Konstantin Simonov of their arrangement in written form, thus making him an arbiter. Iosseliane was not awarded in the end and though this information Simonov gave at the committee hearing was later used and commented by many authors and was not denied, J.K. Iosseliane is considered the author of "Notes of a submarine officer".
2 Konstantin Simonov "Through the eyes of a man of my gen-
eration. Reflections about Stalin" http://hrono.ru/libris/lib_s/simonov15.php
The use of another writer's literary work in the case of A.A. Surov's Stalin literary award was of a different nature. A. A. Surov was highly favored by Joseph Stalin and had received the Stalin award in literature twice; also his works were actively used in stage plays all over the country. In January 1951 Surov sent a scenario of a play called "Sunrise over Moscow" to the Gorky film studio, where the names of two co-authors were given. After the play received the Stalin award of the second-degree Surov excluded the name of the second author. The author of this work was Jacob Varshavskiy, who had been excluded from the Communist party and was in a difficult financial situation3. His name being given as a co-author guaranteed him commission from the play being shown in theatres. Because he was excluded as an author of the play he could not claim part of the state award. Varshavskiy was one of the first soviet authors who decided to rebut authorship rights. During the review of the case, including that of multiple committees of the Soviet Writers' Union Varshavskiy was able to prove where he borrowed the names of characters (it was a list of tenants of his communal apartment that was posted next to the front door with the number of rings for each). Also the author presented previous drafts of the play and described the events that were taken from his life experience. Surov could not even give a summary of the plot. The reason Surov gave for recruiting Varshavskiy was the desire to help Varshavskiy, given his difficult financial situation, and even noted that he had paid him 6 thousand rubles after receiving the award. Because this case was under review during the lifetime of Joseph Stalin a decision in favor of Varshavskiy would have had a negative impact on the reputation of the Soviet Writers' Union as well as the Stalin literary award itself. Surov is still listed as the sole author of the play "Sunrise over Moscow". In this situation it is clear that the authorship itself was not the root of the conflict: after the death of J. Stalin there was little interest in the play and it did not become a world classic of dramaturgy, the only reason Varshavskiy decided to rebut authorship was remuneration. In such cases there is a clear conflict between the recruitment of ghostwriters and moral and ethical norms. In place of a person with no literary talent other people do the work anonymously because the former possesses a certain degree of administrative or political influence, and this misleads the readers, viewers and those that are responsible for choosing nominees for such awards.
Another case that should be mentioned in the context of recruiting ghost-writers in countries of continental Europe is that of the works of Paul Loup Sulitzer that have been characterized by critics as a new genre of "financial western". In 1983 one of the most popular novels of this author "The green king" is published. In 1987 a television program called "Apostrophe" is broadcast in which Bernard Pivot, a journalist and critic, leads an investigation into the "Sulitzer method"
3 Сталинские премии. Две стороны одной медали. В. Сви-ньин, К. Осеев. «Свиньин и сыновья» 2007г. / Stalin prize. Two sides of the same coin V.Svinyin, K. Oseev 2007, p. 376, 680
of writing novels4. As a result of his investigation the journalist comes to the conclusion that other people wrote nearly all Paul Sulitzer's books and the most popular ones (including "The green king") were a result of "collaboration" with Loup Duran. After the airing of this television program Paul Sulitzer publicly announced the names of all the writers who had worked for him, defining his role in the making of the novels as "novel director", not author. Nonetheless all the writers remained "ghostwriters" and did not become known as the authors or co-authors of the works. Paul Loup Sulitzer remains the author of all the novels.
It is necessary to note the following significant characteristics of contractual relations when recruiting ghostwriters. Due to the general rule established in international conventions regarding the protection of copyright, the right of authorship (irrespective of how the concept of author is defined in the legal system) is a non-proprietary individual right and as a consequence is a non-alienable right, therefore authorship itself cannot be the subject of a civil law deal. For ghostwriters it is possible either to conclude other forms of legal agreements which would on the one hand allow them to demand compensation, and on the other hand would not lead to contestation of authorship, or to use oral agreements counting on "decency" or trusting personal relationships with the client. In continental law such deals have questionable prospects - in the first case this would be considered a false deal, in the second case the oral form of agreement is either itself impossible (such as the case in the Russian Federation) or there are stringent conditions of proof. Even when it is proven that a ghostwriter wrote the client a literary work remains the "author" of a given work. This occurs due to the presumption of authorship, a presumption formed on the basis of the provisions of the Berne Convention for the Protection of Literary and Artistic works of 09.09.1886 according to which the author of a work is the person whose name is on the cover if it is not proven otherwise. It is key that most ghostwriters do not contest authorship and according to the aforementioned presumption the client remains the author. The case of Varshavskiy and Surov is an exception but the desire to confirm authorship was connected to the fact that for Varshavskiy it was the only opportunity to receive part of the Lenin prize in literature. In all the reviewed cases the only motivation of the ghost-writer was to receive financial reward, nobody had the intention of being named as the author ( or co-author) which means the author did not possess such literary ambitions or the author was a known specialist in a related field (such as journalism) and was trying out in the literary genre to receive additional income.
The main issue that occurs when attempting to give a legal definition of the work of ghostwriters is whether the publication of literary work written by a
ghostwriter is plagiarism in the sense that is used to define plagiarism in various legal systems. Plagiarism is traditionally viewed as the appropriation of authorship of an object of intellectual property that was created by somebody else. The question of the relationship between these two concepts arises from the fact that when a ghostwriter is recruited the author of the literary work is not the person who is publicly stated as the author. One if the main criteria to separate these concepts that exist in scientific literature is the existence of permission to use another's work and the circumstances under which this permission was given5. In all the examined cases the authors voluntarily gave the permission to publish their work under the name of their "client", there was no misappropriation or theft of someone else's literary work. Legal relations with the ghostwriter are mostly formed to record certain arrangements, thus turning the use of the labor of ghost-writers into a bilateral legal act, whereas plagiarism is always unilateral and the real author is not involved in the process and it is most likely done against their will. The priority of the commercial component for the ghostwriter is noteworthy, most often the transfer of authorship of the work created by them is more lucrative than publishing under their own name, so it is difficult to claim material harm as a result of the publication of their work by the client. Because there is permission to publish their work under someone else's name it is also difficult to claim there is a breach of personal rights or there is moral harm. Another problem of classifying the use of ghostwriters, as a form of plagiarism is that ghostwriters rarely contest authorship itself, and as in the case of Sadler and Reynolds the dispute is in the sphere of pecuniary interests, which is why it is difficult to prove plagiarism, as there is no interested party.
If a separation is to be made between to use of another's literary labor and plagiarism then the next dilemma is whether it is at all acceptable to hire and regulate the work of ghost-writers by means of legal mechanisms. The difference in approach to this question is due to differences in the understanding of what constitutes the status of an author, the definition of copyright and the system of objects of copyright. International legal acts including the Berne Convention for the Protection of Literary and Artistic works of 18866 and the Geneva Universal Copyright Convention f 19527 do not define the term author, that is a prerogative of the member states. An analysis of the laws and regulations of some states (France and the Russian Federation) which are part of the continental legal system allows to come to the conclusion that the use of contract models for the purpose of selling authorship is not possible. For example article 1265 of the Civil Code of the Russian Feder-ation8 explicitly states, firstly, non-alienation and non-transferability of authorship right, secondly, the invalidity of any renunciation of these rights that leads to
4 https://www.babelio.com/apostrophes.php?search=5335
5 Jane Robbins "The Ethics of Authorship: Is Ghostwriting Plagiarism?" 23 February 2015 Inside HIGHER ED https://www.insidehighered.com/blogs/sounding-board/eth-ics-authorship-ghostwriting-plagiarism
6 http://www.wipo.int/wipolex/en/trea-
ties/text.jsp?file_id=283698
7 http://portal.unesco.org/en/ev.php-
URL_ID=15381&URL_DO=DO_TOPIC&URL_SECTION =201.html
8http://www.consultant.ru/docu-
ment/cons_doc_LAW_64629/01cf40c9e42efacdb8dff7cdd4 10e2542bbbfdf4/
there being no legal means for recruiting ghost-writers on a contractual basis because if a ghost-writer affirms their authorship and is able to prove it then this activity will be qualified as plagiarism and if the ghost-writer cannot prove their authorship rights they will not be able to collect their reward or claim damages caused by the client's failure to comply with obligations under the agreement. The Code of intellectual property of France9 refers the right to be recognized as the author of a work to moral rights, which are personal, eternal and non-alienable (art. L121-1 CPI). Consequently the right to be recognized as the author of a work cannot be the subject of an agreement. Apart from that, French law prohibits the transfer of rights to a future work that renders pointless an agreement to recruit a ghostwriter because one of the goals of this agreement is to provide financial guarantees to the ghostwriter that their future work would be remunerated. A violation of the moral rights of the author are regarded as counterfeiting and leads to civil-legal or criminal responsibility depending on the size of damages. Common law is based on other principles and the freedom of contract does not exclude the possibility to enter in to contract for the use of the work of ghostwriters, which is illustrated, by the case of Sadler v Reynolds. The sides never brought up the legitimacy of said agreement, only the presence or absence of intention to come into contractual relations. As for the legal regulation of authorship right, according to the Copyright, Designs and Patent Act of 198810 the right to be identified as the author is a moral right and must be realized in all circumstances. The author is considered to be the person who created the work in question, Common law differentiates literary, dramatic and musical works. Attributing the right of authorship to moral laws in Great Britain signifies in greater degree that the person who has the moral rights is the primary holder of any rights that arise from the right of authorship, including any commercial rights. Furthermore this legal system does not have an explicit prohibition to the alienation of these rights, the possibility of the use of the work of a ghostwriter will be reviewed on a case-by-case basis. The existence of hired literary labor becomes possible due to the possibility of the waiver of rights and its active use. Thus having waived their right to authorship in an apparent and unambiguous manner in exchange for a reward or commission from the publishing of the work the party in question may lose the possibility to reinstate their authorship right.
In scientific literature the question was raised of the possibility of recruiting ghostwriters in different spheres depending on the breach of moral and ethical norms because the right of authorship is primarily a moral right. For example, it would not surprise anyone if a politician does not write their own speeches and nobody expects them to announce the name the name of the person who wrote the text of the speech. It has become common practice to recruit ghostwriters to write "autobiographies" and memoirs especially for people of non-creative professions (politicians, athletes, businessmen etc.). The use of a ghostwriter can be explained by multiple reasons; primarily it is the lack of
time or an inability to describe the events of their life in literary form. However, in some cases the use of a ghostwriter contradicts moral and ethical norms, and this is when the identity of the author is of fundamental importance to the reader. This concerns scientific publications and the works of famous authors. In the first instance the use of ghostwriters apart from contradicting literary ethics also calls into question the whole system of reward in the scientific sphere and also misleads the reader who assumes that they are reading the work of the author that had made a discovery, conducted certain research etc. The situation is similar regarding well-known authors, each author has a certain readership and there is a certain set of signs that attest to the existence of readers' expectations. For example, the number of readers of authors who receive well-known literary prizes (Nobel prize for literature, Prix Gon-court, Pulitzer prize, Man Booker prize, etc.) rises sharply after they receive the prize and there is a high expectation of a new work. At the same time an expectation is formed in the minds of readers regarding the level of "quality" of a literary work by this author. There is a certain similarity between the recruitment of ghostwriters by well-known authors and the appropriation of a trademark that has formed a base of loyal consumers of a brand who all things being equal will prefer to buy the product of this specific producer.
To summarize, the use of hired labor in the sphere of literary work comes across, on the one hand, with direct statutory prohibition and on the other with moral and ethical imperatives. The state for its part does not have adequate mechanisms to protect ghostwriters, their clients or the readers that were mislead about the true author of a work of literature they have acquired. Legal regulation of the terms of recruiting ghostwriters would help solve this problem. It is quite problematic to create regulations, which determine the rules of conduct for those, involved in the intellectual sphere dependent on the content and field of literary activity. It would appear that the best choice would be to adopt a differentiated approach depending on the contribution of each party to the common work of literature. This principle is used in all legal systems to determine co-authorship or collaborative works. In Great Britain a work of collaborative authorship means any work that was created by the collaboration of two or more authors where the contribution of one author is equal to the contribution of the other and reference to one author is considered a reference to the other as well. In France this takes on two forms - a collective of authors - when it is not possible to determine the role of any one member of the collective as the key role and assign authorship, and also co-authorship - a joint work where each author can use their personal contribution separately (if that is possible) without detriment to the joint work. In the Russian Federation persons who created a work by means of collaborative creative labor are recognized as co-authors whether or not this work forms an inseparable entity or consists of parts, each of which has independent value. Therefore, any participation in the creation of a literary work creates joint authorship in one
9 http://www.wipo.int/wipolex/en/text.jsp?file_id=483748
10 https://www.legislation.gov.uk/ukpga/1988/48/contents
form or another whether or not it is possible to separate the work of each co-author into an independent literary piece. A similar legal model could be used for the purpose of regulating the work of ghostwriters. The first question that needs to be resolved is the contribution of the ghostwriter and the client towards the final work. It is necessary to highlight the rather convenient definition of objects of copyright that exists in civil law in the Russian Federation that can be used to solve this problem. According to it objects of copyright are parts of the literary piece, its title and characters if they can be recognized as the result of creative labor on the part of the author (art. 1259 of the Civil Code of the Russian Federation). Analysis of the use of ghostwriters conducted in the present article allows distinguishing certain common characteristics. As in the case of Sadler and Reynolds, Iosseliane and Kremlev, and in most cases concerning the memoirs or biography of another person, almost all objects of copyright are created by one person, the ghost-writer has a more "technical" than creative role. Of course, the way a biography is written plays a large part in the success of the work from the point of view of readers' interest and demand, nonetheless the role of the ghostwriter is secondary because they use the plot, characters etc. formulated by another person. Creating legal opportunity to recruit ghost-writers for the creation of memoirs, autobiographies would solve several problems - it would reduce the number of sham deals in countries of the continental legal system and oral agreements in the British legal system and would minimize the risks of the client author as well as the ghost-writer as the ghost-writer would not be able to claim authorship or co-authorship and the client author would be obligated to pay remuneration for the performed work. Situations where the ghost-writer performs more of an editorial role (e.g. changes the style of narration, uses literary devices, or, as in the cases of popularizing various scientific spheres, the ghost-writer presents scientific research in more accessible "layman" language.
In all cases where the client author does not conduct any creative work directed towards creating a literary piece but only uses their name to increase sales, promote the piece, receive an award or prize for scientific research the use of ghost-writers should be viewed as plagiarism or counterfeiting. The main problem in this case is the possibility itself of contesting authorship. If both sides conceal the fact of plagiarism, even if there is proof of the work being written by a ghostwriter, as in the case of Paul Loup Sulitzer who didn't
deny that his novels were written by various people, how is it possible to contest authorship if it is not done by the true author of the literary or scientific work. Since it appears difficult to resolve the issue of authorship by legal means a more optimal model is to compensate damages to publishing house if information of the true authorship of a literary work has resulted in a refusal of readers to purchase it and if it is possible to determine the relation between a drop in customer demand and information that the work had been written by another author. This would help minimize the commercial and reputation risks for a publishing house if it was mislead by the client author concerning their authorship and it was later revealed that the work had been written by a ghostwriter.
In conclusion it is necessary to highlight that the lack of clear legal regulations of the recruitment and use of hired literary labor does not correspond to the economic turnover in the sphere of intellectual property. The use of ghostwriters in some spheres has become common practice and lack of its formal legal establishment leads to the transition of such arrangements into the shadow sector.
REFERENCES:
1. Konstantin Simonov "Through the eyes of a man of my generation. Reflections about Stalin" Agenstvo Pechati Novosti, 1988, Moscow.480 p.
2. Stalin prize. Two sides of the same coin V.Svinyin, K. Oseev 2007, p. 376, 680
3. Jane Robbins "The Ethics of Authorship: Is Ghostwriting Plagiarism?" 23 February 2015 Inside HIGHER ED
4. The Berne Convention for the Protection of Literary and Artistic works of 04.12.1887 http://base.garant.ru/2540350/
5. The Geneva Universal Copyright Convention of 1952 http://www.consultant.ru/docu-ment/cons_doc_LAW_7229/
6. Copyright, Designs and Patents Act, 1988, c 48. https://www.legisla-tion.gov.uk/ukpga/1988/48/contents
7. The Code of intellectual property of France No 92-597 of 1 July 1992
8. Civil Code of Russian Federation 4 part, 18.12.2006r. 230-®3 http://www.consultant.ru/docu-ment/cons_doc_LAW_64629/
9. John Sadler v George Reynolds (2005) EWHC 309 (QB)
