The legal challenges of ghostwriting: insights from Brazilian law

Ghostwriting contracts involve a writer producing a work whose authorship will be attributed to another person, in exchange for payment. Although ghostwriting is not a recent practice, it has become increasingly common in the publishing market worldwide, usually including clauses in which the ghostwriter transfers economic and moral rights and agrees to maintain confidentiality. This research examines whether such contractual arrangements are valid under Brazilian law, given that moral rights are considered inalienable and non-renounceable (Article 27 of the Copyright Law) - as is typical of legal systems aligned with the droit d’auteur tradition. This exposes a gap between legal theory and social reality. Using a doctrinal-legal approach, the research reassesses Article 27 of the Copyright Law through the interpretative framework developed by the Brazilian legal scholars Villela (2023) and Stancioli (2010), which distinguishes between the renunciation of personality rights (invalid) and the renunciation of their exercise (valid). This distinction, consolidated in the interpretation of Article 11 of the Brazilian Civil Code—which provides for the inalienability and non-renounceability of personality rights in general—has not been applied to moral rights of authors. As a result, most Brazilian scholars and courts have considered ghostwriting contracts to be void. This study challenges this prevailing view. The study argues that ghostwriting contracts are compatible with Brazilian law insofar as they preserve the true author’s right to revoke anonymity and reclaim authorship. However, the ghostwriter remains subject to potential civil liability arising from a breach of the confidentiality agreement. In this view, limited and reversible transfers of moral rights do not contradict the personalist foundation of the Brazilian Copyright Law.