State of the Industry

Continuing Milt Toby’s three-part exploration of publishing contracts (see our January and February editions), we’ve finally arrived at perhaps the most frustrating component of a typical contract: warranties & indemnifications.

These sections are typically riddled with legal jargon that will leave your typical author scratching his/her head—or maybe just skipping straight ahead to pulling hair from scalp. Either way, it’s important to understand how much protection your hide has from the all-powerful paddle of the law, and what you can legally expect from your publishers.

In lieu of hired legal counsel—Milt Toby is here to help.

Contract Decoding (Part 3 of 3)
By Milt Toby

Promises and Problems
Authors should be alert for “warranty” and “indemnification” clauses in their publishing contracts. The former identifies guarantees that the author is asked to make by the publisher, some more onerous that others; the latter is the publisher’s attempt to insulate itself from liability in the event of legal action arising from publication of the book that is the subject of the contract.

This is typical warranty language:

“The Author warrants that he or she is the sole owner of the Work and has full power and authority to enter into this Agreement, that the Work does not infringe the copyright of any other work, that the Work does not violate the rights to privacy or publicity of any person, and that the Work does not defame any person or entity.”

The warranties of manuscript ownership, legal authority to bargain with the publisher, and no copyright infringement make sense, and are things that are reasonable for the author to know. Warranties that the book does not infringe on the rights to privacy and publicity of any individual, and that the book does not defame anyone, are more problematic. Whether a particular book violates privacy or publicity rights, or is defamatory, are legal judgments that an author might not be in a position to predict. Adding limiting language, such as “to the best of the Author’s knowledge and belief” creates some maneuvering room for the author and can be important in the event of legal action by a person claiming to have been harmed.

A contract should include warranties by the publisher that no substantive corrections or additions can be made in the manuscript without prior author approval. It is unfair to hold an author responsible for editorial changes made by the publisher without her approval.

Even more bothersome are “indemnification” clauses such as this one:
“Author agrees to indemnify and hold harmless the publisher against any and all claims (including reasonable attorney fees) that may arise through Author’s breach of any warranty or representation made herein.”

Consider the ramifications of an indemnification clause: an author signing a contract with such language is agreeing to pay the publisher’s legal bills for any legal action related to the book, even if those legal claims prove to be frivolous and the author is not at fault. This is a heavy burden, and an unreasonable one, for an author to bear. The best strategy is to ask that the clause be deleted in its entirety, an action which publishers are reluctant to do. A reasonable alternative is to try and add limiting language such as “when Author’s liability is established in a court of competent jurisdiction, after all available appeals.” This modified clause at least protects an author from frivolous claims.

Liability insurance for authors is available from a few carriers, but it can be prohibitively expensive. Publishers should already have liability insurance in place and they might be willing to add an author to the policy as an also-insured individual. The answer probably will be “no,” but when negotiating a contract it never hurts to ask.

Authors also should be wary of contract language giving the publisher right of first refusal for the author’s next book, usually under the same terms as the original contract. It sounds tempting for an author to think that there is a guaranteed publisher for the next book, but the clause is an option, not a promise. It is a sweet deal for the publisher if the first book is a success, and no guarantee for the author if the first book fails to meet expectations.

Deleting the clause is the best option. Otherwise, the author should request a time limit for the publisher to either accept or refuse the option, restrict the genre so that the author can look for a more suitable publisher, and allow for renegotiation of the contract terms.

Lessons Learned
Authors are an independent and creative group. This usually is a good thing, but making sense of a complicated publishing contract is seldom a do-it-yourself job. These contracts are binding legal documents with long-term consequences relating to copyright, money, liability, and other issues not covered here. Contracts are written by lawyers in the publisher’s employ and are best interpreted by the author in consultation with an attorney who is familiar with publishing agreements and who can protect the author’s interests.

Milton_C_TobyMilt Toby is an attorney and award-winning author of nonfiction. He joined the Board of Directors of the American Society of Journalists and Authors in July, after several years as Chair of the ASJA Contracts & Conflicts Committee. The information in this article is presented for educational purposes only and is neither legal advice nor a solicitation for clients. For more information about Milt’s books, visit his website at www.miltonctoby.com.