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Helping to Change the World…Word by Word

The Steve Laube Agency

The Steve Laube Agency

Helping to Change the World Word by Word

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Home » Writing Craft » Copyright

Copyright

I Is for Indemnification

By Steve Laubeon April 25, 2022
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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 an author’s 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 or it is not libelous in content. I will cover this clause more fully at another time.) The language has been written by the publisher’s attorneys and is 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 that are covered by their publishing insurance.

In addition, try to limit the indemnity to material you submit to the publisher. If they add illustrations, 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 it. The author decided they should have had a literary agent and secured my services, but it was too late for this situation. (Side note: This is an illustration of those times where going alone without a good literary agent is a bad idea.)

On occasion, the publisher may require a legal reading to be done of your book if there are concerns regarding your content. This was done for one of our client’s nonfiction books last year. Some highly charged things 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, they do, or you do 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 three articles: Tara Lynne Groth’s “Get Covered: Media Insurance for Writers,” Daniel Stevens’s “Do You Need Liability Insurance?”or Brad Frazier’s “5 Things Nonfiction Authors Can Get Sued For.”

Do I recommend you buy such insurance? It depends. When asked by clients, I go through the author’s reasons for being concerned. I know of one who did buy liability insurance for themselves (fortunately never had to use it). Most either rely on their own vigilance in avoiding inflammatory material or, in a few cases, utilize a publisher’s legal reading.

If you are publishing independently, you may want to consider joining the Author’s Guild and take advantage of their Media Liability Insurance program (find that link here). Or join the IPBA (Independent Book Publishers Association) for their program (find that link here).

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. Plus, as soon as you publish something with your name on it and make it available to the public, you are subject to the laws of your land related to publishing something in writing. So be aware and be careful.

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Category: Book Business, Contracts, Copyright, Legal Issues, Publishing A-ZTag: Contracts, indemnification, lawsuit, warranty

What about Credit for Ideas?

By Tamela Hancock Murrayon November 5, 2020
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The “Your Questions Answered” Series __________ If an author asks his or her Facebook followers or blog readers for help in brainstorming, does the author owe anything if he or she uses an idea presented in that way? I have seen some do it as a contest. They’ll ask for ideas for the book title or a character’s name, and if they use one, they’ll give that person a free, signed …

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Category: Copyright, Creativity, Your Questions Answered Series

May I Use Real Names of Places in My Novel?

By Tamela Hancock Murrayon September 24, 2020
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The “Your Questions Answered” Series __________ I am wondering about whether or not to use real names of places in my novel. Is it better to disguise names of towns and cafes or offices? What about popular franchises like MacDonald’s? When authors write about a town, most inhabitants are thrilled. I wrote Love Finds You in Maiden, North Carolina, and received a warm reception. I enjoyed …

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Category: Copyright, Craft, Legal Issues, The Writing Life, Your Questions Answered Series

Checked Your Copyright Lately?

By Steve Laubeon September 17, 2018
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Have you checked your copyright lately? I mean, have you actually gone to the US Copyright Office web site and searched for your registration? You might be surprised at what you won't find. Here is the link to start your search.

Most publishing contracts have a clause that requires the publisher to register the copyright, in the name of the author, with the US Copyright Office. This is supposed …

Read moreChecked Your Copyright Lately?
Category: Book Business, Copyright, Legal Issues, Publishing A-ZTag: Book Business, Copyright, Legal Issues

When Does a Book Become Public Domain?

By Steve Laubeon October 2, 2017
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Writers frequently ask about whether they need permission to quote from another book. The answer is usually yes. But if the book is in the public domain that permission is unnecessary. I don't want to tackle the issue of "Fair Use" today, but instead provide a few links that you can use to find out if a book is in the public domain, or not.

First, use this form …

Read moreWhen Does a Book Become Public Domain?
Category: Copyright, Legal Issues, Writing CraftTag: Copyright, Legal Issues, public domain

Name Brands in Fiction

By Tamela Hancock Murrayon July 30, 2015
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So, you’re driving down the road, and you see a Ford F-350 with Monster wheels and an NRA bumper sticker. And you see a Toyota Prius with a Go Green bumper sticker. You know these are two different personalities driving the vehicles, right? You probably have formed an image already. I would guess you even think the driver of the truck is a male and the Toyota is a female. Or you might see a …

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Category: Copyright, Craft, Legal Issues, Writing CraftTag: Copyright, Craft, Legal, Writing Craft

Happy 85th Birthday Mickey Mouse!

By Steve Laubeon November 18, 2013
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by Steve Laube

 On this day in 1928 the film "Steamboat Willie" made its debut. The main cartoon character (almost named Mortimer!) was featured and Mickey Mouse was born.

You might ask, "So what? Other than fun trivia, what does this mean to me as a writer?" Actually the success of Mickey Mouse and the Disney empire cuts to the heart of today's copyright laws which affect you and your work. …

Read moreHappy 85th Birthday Mickey Mouse!
Category: Book Business, Copyright, Legal Issues, SteveTag: Book Business, Copyright, Legal

News You Can Use – March 12, 2013

By Steve Laubeon March 12, 2013
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Plagiarism and the Link - How one author got sued when his publisher forgot to include the proper hyperlinks in his article. Read this article before write another thing.

Legal Issues for Authors - Particularly Those Who Self-Publish - An interview with Paul Rapp and attorney who specializes in intellectual property law. (Click here for his many articles on various topics in this area.)

How …

Read moreNews You Can Use – March 12, 2013
Category: Copyright, Legal Issues, Steve

The Cost of Permissions vs. Fair Use

By Steve Laubeon December 3, 2012
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by Steve Laube

Every book contract has a clause that reads something along these lines:
If permission from others is required for publication of any material contained in the Work or for exercise of any of the rights conferred by this Agreement, Author shall obtain such permissions at Author’s expense, in a form acceptable to Publisher, and shall deliver such permissions to the Publisher …

Read moreThe Cost of Permissions vs. Fair Use
Category: Book Business, Copyright, Legal Issues, SteveTag: Copyright, fair use

The Landmine of Fair Use

By Steve Laubeon November 26, 2012
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by Steve Laube

Remember you can use the big green button to the right of this blog to ask us questions. Recently we received two that were on the issue of fair use of other people's writing.

Steve,
What are the standard fair use rules for quotes of other published works? I used quotes in my book and my understanding was that if it was less than 250 words then you don't need …

Read moreThe Landmine of Fair Use
Category: Book Business, Contracts, Copyright, Legal Issues, SteveTag: Copyright, fair use
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