I is for Indemnification

by Steve Laube

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Publishing is not without risks. Plagiarism, fraud, and libel by an author are real possibilities. Thus within a book contract is a legal clause called indemnification inserted to protect the publisher from your antics.

The indemnification clause, in essence, says that if someone sues your publisher because of your book, claiming something like libel (defamation) or plagiarism etc., your publisher can make you pay the fees to compensate for their losses. This is to “indemnify” which is defined as “to compensate (someone) for harm or loss.” Bottom line: The publisher has the right to hire its own attorneys (at the author’s expense) to defend against these claims.

Doesn’t sound like a happy clause does it? But you can understand why it is there. This clause and the Warranty clause are notoriously difficult to negotiate. (The Warranty clause is where the things the author guarantees or warrants are listed; i.e. the book is original, it is not libelous in content, etc. This clause will be more fully covered by me at another time) The language has been written by the publisher’s attorneys and are usually set in stone.

At the very least try to indemnify only on a final judgment or ruling for actual damages in a breach of the warranty section of the contract. Try to avoid language that reads “any claims” because anyone can sue for any frivolous reason nowadays. Normally a publisher will handle the frivolous cases and are covered by their publishing insurance.

In addition try to limit the indemnity to material you submit to the publisher. If they add illustrations, or text, or charts that trigger a lawsuit, you should not be held accountable for their additions. I know of a case where an author did not do this. The publisher put something on the cover of the book that triggered a lawsuit. The publisher looked at the indemnification clause and said “Hey Mr. Author, you get to pay these legal fees!” Cost the author $5,000 for the defense. By the way, that publisher is now out of business so you don’t have to worry about them. The author decided they should have had a literary agent and secured my services, but it was too late for the situation above. [Side note: this an illustration of those times where going alone without a good literary agent is a bad idea.]

On occasion the publisher may require that a legal reading be done of your book if there are concerns regarding your content. This was done for one of our client’s non-fiction book last year. There some highly charged things that happened to the author so because that story was being told the publisher did a legal reading. The manuscript passed the scrutiny without a hitch. But if there had been issues the publisher would have asked for changes to avoid legal action. So if your book is a memoir or a “tell-all” or something where you “name names” you should talk to your publisher and have their legal department do a reading (whether you pay for the reading or they do or a 50/50 split may be part of your contract).

If you are so concerned that you want to buy your own liability insurance for something called “Media Perils” check out these two articles by Tara Lynne Groth “Get Covered: Media Insurance for Writers” and by Daniel Stevens “Do You Need Liability Insurance?”

You might think, “I write fiction, that will never happen to me.” But what if, during your research, your assistant copied word-for-word an article on “how to start a campfire without matches in a wet forest.” You then used that material word-for-word in a scene in your book because you thought your assistant had summarized the article, not copied it. Your book is published. The author of that article notices and accuses you of plagiarism and copyright violation. An unlikely situation? A variation of this scenario actually happened to an author I know.

Remember that writing becomes a business once you enter into a contractual arrangement. So be aware and be careful.

Publishing A-Z series:
A is for Agent
A is for Advance
B is for Buy Back
C is for non-Compete
D is for Dispute Resolution
E is for Editor
F is for Foreign Rights
G is for Great
H is for Hybrid

11 Responses to I is for Indemnification

  1. Terrance Leon Austin October 21, 2013 at 5:13 am #

    Thanks Steve. Another lesson I’ve learned about this business. It becomes more clear on a daily basis that if a writer plan on pursuing a writing career, obtaining a good literary agent is in his/ her best interest. Thanks again Steve. Bless you.

  2. Jeanne Takenaka October 21, 2013 at 6:29 am #

    Steve, thanks for explaining this aspect of publishing. I have heard of indemnification, but I was unclear on what it is. I can see how and why authors really need to be careful.

    Have you ever encouraged an author to purchase insurance?

    • Steve Laube October 21, 2013 at 1:00 pm #

      Jeanne,

      You ask a great question. No, I have not encouraged an author to purchase insurance. But when I’ve been asked I go through the author’s reasons for being concerned. I know of one who did buy liability insurance for themselves. But most either rely on their own vigilance in avoiding inflammatory material or in a few cases a publisher’s legal reading.

      • Jeanne Takenaka October 21, 2013 at 1:48 pm #

        Thanks for taking the time to answer, Steve. It’s good to know. :)

  3. Nancy B. Kennedy October 21, 2013 at 6:30 am #

    I once was leafing through a book (by a Christian author) about women and finances, and the words started to sound really, really familiar. The author had taken a 2,000-word article I wrote for a major brokerage house on saving for your child’s college education and just dropped it into her book. She claimed that her assistant (her husband!) had accidentally “merged” the material without her knowledge. I don’t know what her publisher did, but the lawyers at the brokerage house sure took action!

  4. Meghan Carver October 21, 2013 at 6:48 am #

    Such great information, Steve. I feel like I’m in law school again but without the pressure of the Socratic method. Thanks for your time spent here.

  5. Terry Whalin October 21, 2013 at 7:23 am #

    Steve,

    Great insights here. Thank you. You and I have dealt with a lot of contracts–even together through some challenges. Authors often sign without getting good counsel in this area. I always recommend authors check with a literary attorney –not just any old lawyer–with their contracts. These skilled professionals are worth their weight in gold in my view. I recommend my long-term writer-turned-lawyer friend Sallie Randolph as one possibility in this area. Her site is: http://www.authorlaw.com and she’s a great defender of writers’ rights and a skilled attorney in the great state of New York which has the strongest literary law in the U.S.

    Terry

  6. Jackie Layton October 21, 2013 at 10:14 am #

    Thanks for sharing this information. I never put that much thought into this before. I’ve got so much to learn, but one step at a time.

    Thanks again!

  7. Marci Seither October 21, 2013 at 12:54 pm #

    What a great post with awesome links. Such great information on the nuts and bolts of the business part of writing.

  8. Stephen Myers October 22, 2013 at 9:59 am #

    Another reason why I’d never publish without an experienced agent representing me. Thank you Steve for an exceptional topic. I do have some followup questions.

    1. In my BA (Journalism) degree courses of the 1990s I learned in Law and Ethics that ‘Truth is a defense against libel’ as defined by the Supreme Court and how that applies to journalists as well as nonfiction writers. But how does that differ for Fiction writers? Is there a different standard of case law for fictional works based on or composites of true (news) stories?

    2. I understand the difference between ‘public domain’ and ‘copyright’ law as it relates to ‘using material.’ In an academic work one must cite sources. Same in nonfictional work (and copyright material often obtained by copyright permissions).

    Your example of ‘how to light a fire,’ is a good example. How could that accurate process (for a fictional writer) be included in a scene or story without violating the copyright? Would it mean finding other non-copyright sources? Or would (with the publisher’s involvement) the source be pursued for a copyright permission (with a footnote or reference) in the novel? I’m not sure I’ve ever seen one in a work of fiction (on the page where mentioned) but have seen some with citations at the end of a novel.

    3. I know on some of my MS’s I draw on life (real life) for story inspirational considerations and build (as composites) locations, characters, situations or settings. Doesn’t a disclaimer such as: “All characters appearing in this work are fictitious. Any resemblance to real persons, living or dead, is purely coincidental,” mean a valid defense between the writer/publisher in the rare case someone pursues the publisher for legal action?

    I know Kathryn Stockett in THE HELP was sued for the use of some parts as plagiarism but the case thrown out of court. Do you know if that process was direct of the writer or through the publisher where it went to court? (http://en.wikipedia.org/wiki/The_Help)

    4. In Documentary Production we had options such as ERRORS AND OMISSIONS insurance for our projects. Is Literary Insurance affordable as referenced in the links above or something to really be discussed between the writer and agent in negotiating the deal with the publisher (for the novel)?

    5. How much ‘vetting’ is done with a novel when a publisher reads and decides to publish? Up until now I’ve gained insight a WIP or completed MS goes through several layers of the Publisher and their editor(s). The match/fire reference seems like it should have been a red flag to that process much earlier than when an issue.

    When do direct conversations with the writer, agent, publisher and/or editor(s) like an interview transpire for each novel a writer is pursuing for publication. Maybe you will get to this in “V” for Vetting. At “I” now that seems like a long way away.

    Thanks again for a very thought provoking article.

Trackbacks/Pingbacks

  1. L is for Libel | The Steve Laube Agency - February 3, 2014

    […] person’s reputation via the written word (slander is for the spoken word). I wrote recently about Indemnification but only touched on this topic. Let’s try to unpack it a little further […]

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