Tag s | Contracts

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

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News You Can Use – Oct. 2, 2012

Why is the new J.K.Rowling e-book priced at $17.99? – This brief article presents some succinct economic details to help you further understand how this industry works.

Penguin Sues Authors for Advances Paid – There are at least two sides to every story, but this appears to be a number of cases where a writer signed a contract, accepted a sizeable cash advance, and never delivered the manuscript. There must have been previous attempts to get the money back for Penguin to resort to the court system to collect.

Get Paid More for your Freelance Work! – This article has 37 negotiating tips to improve your freelance editing income.

Congratulations to our clients Aaron McCarver, Diane Ashley, and Susan May Warren for winning the Carol Award for their fiction category. Click here for a complete list of winners and their book jackets. Well done!

The Accidental History of the @ Symbol – The origin of things like these is always fascinating to me. This article is from the Smithsonian Magazine.

The Importance of a Good Contract – “I Love Lucy” is worth $20 million annually…sixty years after the show aired.

My father, Roger G. Laube, passed away on September 15th and we recently held the burial and memorial services with family gathered from six states. He was a remarkable man who had an unwavering faith in God and a vigorous life in business, church, music, and family. He served as an incredible model for all who were touched by him. We love you Dad. You will be missed. An online memorial can be found at this link (http://bit.ly/QCg6tc). Included there is a full obituary and a “more photos” section. (Memorial gifts should be sent to Gideons International.). Picture to the left is from his 90th birthday, last year.

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Goodbye to Traditional Publishing?

by Steve Laube

Recently Ann Voss Peterson wrote of her decision to never sign another contract with Harlequin. One major statistic from the article is that she sold 170,000 copies of a book but earned only $20,000.

Multiple clients sent me Peterson’s “Harlequin Fail” article and wanted my opinion. My first thought is that this was typical “the publisher is ripping me off” fodder. But that would be a simplistic and knee-jerk reaction and unfair to both Peterson and Harlequin.

Yes, Harlequin pays a modest royalty that is less than some publishers. Since when is that news? That has always been their business model because it is the only way to create and maintain an aggressive Direct-to-Consumer and Trade publishing program. Their publishing machine is huge and they are a “for profit” company. For Profit. If they are unprofitable, they go away.

If an author is uncomfortable with the terms, then don’t sign the contract (which is Peterson’s decision going forward). I urge each of you to be careful not to sign a contract and then complain about it later. Unless you were completely hoodwinked you agreed to those terms and should abide by them.

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What if You Get a Book Deal on Your Own and Then Want an Agent?

One of our readers asked this via the green “Ask us a question” button.

What happens if you get a book contract before you have an agent? What if, by some miracle, an editor sees your work and wants to publish it? (1) would having a publisher interested in my work make an agent much more likely to represent me, and (2) would it be appropriate to try to find an agent at that point (when a publisher says it wants to publish you)? My fear is that querying an agent and receiving a response could take several months, but I’d need to accept a potential contract with a book publisher right away (I would think). Is it appropriate to ask the editor to speak with an agent on your behalf to speed the process?

This is a great topic but there are a few questions within the question. Let me try to break it down.

Many times have had authors approach us with contracts in hand and seeking representation (happened just last week). Of course this will get an agent’s attention immediately. But there are caveats:

a)      Who is the publisher? There is a big difference between a major company and your local independent publisher. Not all publishers are created equal (see the Preditors & Editors warnings).

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News You Can Use – Feb. 7, 2012

Author Says McGraw-Hill Cheats on Royalties - Details of a pending lawsuit.

What is Pinterest? -  The latest craze in Social Media Networks. AuthorMedia shows you the simple steps to sign up and tips on how to use it in the next article below.

Three Ways an Author Can Use Pinterest – Last week an editor told me how she was following a couple of her authors on Pinterest and how much she liked it.

5 Ways to Break Out of the Social Media Doldrums - Well said by Aubre Andrus.

10 Ways to Ensure No One Will Read Your Blog Post – Ali Luke give great insight

How Hard Can it Be to Write a Kids Book? – Sally Lloyd-Jones helps dispel a common myth.

A very cool six minute video envisioning a future technology. Imagine computing being done on glass walls, desks, and even National Parks. From Corning. By the way, Corning makes the “Gorilla Glass” that you find on the iPad2.

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Deadlines and Taxes

Two certainties in the life of a writer. Deadlines and Taxes.

You know what a deadlines is. It has the word “dead” in it for a reason. And intrinsic to the reality of taxes is that April 15th filing deadline.

But what about those taxes?

Many articles appear in early April about taxes when approaching the filing date. But I thought we should explore a couple items now so there won’t be any surprises come April.

First, the obligatory disclaimer. I am not a tax attorney or a tax accountant. I am merely discussing concepts and ideas which you may or may not use in your situation. And, as always, when it comes to your taxes, make sure to consult a professional.

Some of you may roll your eyes and say, “I already know this.” But remember there was a time when you did not. I get many “beginner” questions each year from debut authors who are discovering much of the business side of this industry for the first time.

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2011 – The Year in Review

It is a good exercise to reflect on the past year. Count the blessings, reflect on the hard lessons, and remember the good times.

The highlight was bringing both Tamela Hancock Murray and Karen Ball into the agency in late May. I was and continue to be very excited about the talent and work these two are doing on behalf of our clients.

That hard work had visible results as we secured sixty-four (64) new book contracts that will cover 113 new books. That works out to a new contract every four business days.

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Writers Learn the Waiting Game

Ours is a process industry. Good publishing takes time. Unfortunately time is another word for “waiting.” No one really likes to wait for anything. Our instant society (everything from Twitter to a drive-thru burger) is training us to want things to happen faster. Awhile ago I wrote about how long it takes to get published which gave an honest appraisal of the time involved. Below are some of the things for which a writer must learn to wait.

Waiting for the Agent

We try our best to reply to submissions within 6-8 weeks and are relatively good about that. But if your project passes the first review stage and we are now reviewing your entire manuscript remember that reading a full manuscript is much more demanding than reading a few short proposals.

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Who Gets Paid in Publishing?

With all the talk about Independent publishing vs. Traditional publishing and the talk about how writers can get rich if they follow a certain plan…I got to thinking. Maybe we should do a quick look at the Economics of Publishing to see if anyone is making off like a bandit. Sorry for you non-numbers people, but it is critical to understand the infrastructure (i.e. the lifeblood) that keeps your ideas in print.

The detective in the movie says “Follow the money,” so we shall. But first a disclaimer. These models are estimates based on years of reading contracts, profit and loss sheets, spreadsheets, and royalty statements. Your mileage may vary.

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