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.
You’ve got to indemnify!
Now, friend, that sounds really rude,
and ignores the fact that I
truly am not in the mood,
but these days are not times what was,
and you say I have been served;
all this rigmarole because
your client has brains of a bird.
Yes, I said it in my book,
because I think to all it’s clear,
and now it seems I’m on the hook
for Tuvalu’s GDP this year,
which is not an awful lot
but still way more than what I’ve got.
Kristen Joy Wilks
Lots of great information here. Thank you, Steve for summing this up for us!
Excellent suggestions. I’ve done considerable research into the area of defamation because of my whistleblower story. One source of information writers may find helpful is a Writer’s Digest article, “A Writer’s Guide to Defamation and Invasion of Privacy,” by attorney Amy Cook. The Authors Guild also has a few YouTube videos that cover defamation, libel, invasion of privacy, insurance protection, and legal vetting.
Maryanne J. Kane, Ph.D
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A Christian Writer
Thanks for the in-depth information, Steve. I appreciate your taking the time to walk us through things.
I am constantly blown away by the complications that come with writing. Thank you for dedicating your posts to such crucial revelations, such as this one. The legal aspects that play a role in the writing realm are often overlooked (I’m guilty of it, myself), but when you give us real-life examples, I’m immediately reminded that these things do happen. Thank you for all the useful content you disseminate through this blog!