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View Full Version : dangerous clause in publishing contracts



Brenda Josephine
05-27-2008, 02:17 AM
Dear fellow publishers and authors,

Do you expect your authors to sign a contract that states this clause below.

"The Author agrees to pay the Company's legal fees and any resulting judgment against the company if legal action arises from any known or unknown libel, plagiarism, breach of privacy or misrepresentation of facts, whether known or unknown by the author, medical and/or legal damages, copyright infringement or any other legal dispute related to the authenticity, character or content of the Author's books."



And if you're an author, have you ever signed a contract that states something to this effect? It's on the Booklocker contract. Yes, they're subsidy and they admit it, and are currently filing a class action suit against Amazon.com for that company's taking advantage of the small folks. Yet, other publishers I know call this an abusive clause towards authors. As an author, it would be a joke if I signed something like this. I can't cover a publisher's legal fees! I barely pay my mortage. Of course, authors need to sign that to the best of their knowledge their work is original, not libel, etc. etc. But the above clause seems to go too far.


My main concern is that I'm starting to see it show up in magazine contracts as well. Publishers are expecting authors to publicize themselves, sometimes help pay for promotion, get paid once for using their material twice (in print and online, in spite of twice the advertising revenue for the publication) and now, cover their legal fees? Any thoughts? A major magazine that's been my bread and butter now has that clause in their contracts, and it seems I either lose my monthly income or sign it. Any ideas on how to ask them to reword it?

Unimportant
05-27-2008, 02:22 AM
Those clauses aren't unheard of, but I'd suggest amending it so that the author pays only when and if "judgement is finally sustained against the author." That way if you lose the case, lose the appeals, and it really is your bad, you pay; but if it's a frivolous lawsuit or somebody with their panty shield in a twist over nothing and the judgement isn't found against you, you're not financially liable.

DaveKuzminski
05-27-2008, 03:05 AM
If you're seeing the same clause in other contracts, mention the names of those publishers, too.

Unimportant
05-27-2008, 03:07 AM
Brenda, is this for fiction or nonfiction?

David I
05-27-2008, 05:33 AM
Well, I can see holding the author liable for plagiarism...

Mac H.
05-27-2008, 09:26 AM
That clause is bad in so many ways.

For a start, that gives the company zero incentive to actually defend the dispute. After all, if the company wins, the company pays a fortune in their own legal fees.

If they don't put up a defense and lose, the company pays zero in legal fees .. the author pays their fees and damages !!!

Not only that, but the author is expected to pay for an outcome that they can't control, since the amount of damages etc is based on so many different factors.

To add to that, in practise the clause would almost impossible be to enforce .. they would have the run the entire court case, wait until a judgement is made (several years later) then present the author with a final bill.

By that time, the author would have conveniently transferred assets away from themselves and declared bankruptcy .. so the publisher wouldn't get any money. Even if they argued against that, it would be years and years later ... it seems bizarre.

On top of that, it is expected that any legal dispute would end up getting settled out of court. The contract only says that you will pay the bills of a legal judgement ... does that cover out-of-court settlements?

If not, then you wouldn't be obliged to pay it.
If so, then you would you be obliged to pay $150,000 in legal fees if the other party mentioned in an interview after the court case that 'I would have settled for $1000 and an apology, but the publisher refused and insisted I go to court' ?

Mac

Brenda Josephine
05-27-2008, 04:55 PM
Great input, everyone! For Booklocker, it's for fiction or non-fiction. I also saw something similar in one of Bowtie's contracts for magazine articles. Bowtie publishes both books and magazines, and I've only seen the contract for magazines. They only publish nonfiction. I'd have to get the exact phrase from a friend who writes for them, but I'll do that if anyone is interested.

This all makes me want to "Inc." or "LLC" myself, as one writer apparently did. Supposedly if you do that and find you have made a mistake or a gold digger comes out of the woodwork and wins, your "corporation" has to pay, but not you or your personal assets. You keep as little as possible in the corporation.

I've heard of the idea of transferring assets, but have heard that if it happens after a possible lawsuit, it can be considered fraudulent transfer. Maybe I should just move to Mexico where there's no liability (kidding).

I am a responsible writer, and think we all should be, but I'm human, also. I want to pay for my mistakes in a fair way, but not become homeless and put my kids up for adoption for a single mistake. I've also done small time publishing and wouldn't want to find out my author had done something illegal. But many of us know about the gal (forgot her name) who published Deceptively Delicious (or something like that), a cookbook for healthy kid-friendly meals that did really well, and now someone is claiming it was her idea first, and is trying to sue the author. We can sometimes do nothing wrong, and still someone comes after us. That's why that clause and similar ones give me the creeps.

IceCreamEmpress
05-27-2008, 10:45 PM
But many of us know about the gal (forgot her name) who published Deceptively Delicious (or something like that), a cookbook for healthy kid-friendly meals that did really well, and now someone is claiming it was her idea first, and is trying to sue the author. We can sometimes do nothing wrong, and still someone comes after us. That's why that clause and similar ones give me the creeps.

That's Jessica Seinfeld, and the person (Missy Chase Lapine) who's suing definitely did come up with the idea before she did (although we'll see whether the lawsuit demonstrates that Seinfeld was influenced by Chase Lapine's work or not).

Although people often come up with similar ideas at the same moment, there are a number of factors in the Seinfeld:Chase Lapine affair that do suggest that it's possible that there might have been some intellectual property rights infringement, either by Seinfeld or her publishers, who had seen the Chase Lapine material a year previously.

On the other hand, it could be a coincidence, and certainly Chase Lapine wasn't the first person to come up with the idea of pureeing vegetables and putting them in other foods, either.

In any case, this is hardly going to put Jessica Seinfeld (wife of Jerry) in the poorhouse.

Brenda Josephine
05-27-2008, 11:14 PM
Thanks for reminding me who that author was. Our country doesn't have different rules for movie star's wives when it comes to following copyright rules, so regardless if Jessica is enjoying the attack and doesn't mind the loss of a relatively small amount of income, it still illustrates that an author can unknowingly create something similar that someone else may have come up with, and have that someone show up that can "prove" you saw their work (maybe you did, in passing, and have no memory of it), and then the publisher puts all the legal fees onto the author, only. I sometimes have no idea how a great non-fiction article or book idea pops into my mind. It may have come up from a newspaper clipping or filtered up from my sister's hairdresser's cousin's husband's brother, or someone showed a group of us a snippet of an idea about someone's funny life with a dog named Carl (which is our dog's name) over drinks three years ago, I don't remember but a seed was planted, and it turns out the owner of the other dog named Carl, has also submitted it. I don't like the publisher having no responsibility in situations like that.

IceCreamEmpress
05-27-2008, 11:22 PM
it still illustrates that an author can unknowingly create something similar that someone else may have come up with

It may or may not illustrate that. Sometimes companies do plagiarize lesser-known creators for the benefit of celebrities: see Buchwald v. Paramount, 1990, where it was shown that the Paramount studio took a movie scenario created by writer Art Buchwald and a writing partner and "gave it" to Eddie Murphy.

Since the Seinfeld: Chase Lapine matter has yet to be litigated, we don't know whether this case is going to be more like Buchwald v. Paramount or more like Stouffer v. Scholastic, Rowling, et al., a case where someone sued J.K. Rowling over a self-published book that used the word "Muggles". (http://www.law.com/jsp/article.jsp?id=1032128573950)


and have that someone show up that can "prove" you saw their work (maybe you did, in passing, and have no memory of it), and then the publisher puts all the legal fees onto the author, only.

I think that your point, that publishers shouldn't shift the costs of legal defense onto authors, is valid. However, one would be hard-pressed to come up with a publisher who didn't require such a clause these days.

Brenda Josephine
05-28-2008, 05:26 AM
I do think author's should take some of the risk, just not all. Maybe "inc." is the way to go.