by Steve Laube
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.