Publishing contract - need advice on a clause.

Klazart · Feb 23, 2007

Hi,
I'm the author of a controversial non-fiction book that is represented by an agent.

I recently recieved a contract and offer from a pretty big local publisher for the book but I'm worried by one of the clauses in the contract.

Here is the clause and the bit of it that worries me..

[FONT=Arial, sans-serif]20. Warranties and indemnity[/FONT]

[FONT=Arial, sans-serif]20.1 The Author warrants to the Publishers (for themselves and for their licensees, printers and distributors):[/FONT]

[FONT=Arial, sans-serif](v) that the Work does not and will not contain anything libellous, obscene, in breach of any duty of confidence or in any other way unlawful or illegal[/FONT]

[FONT=Arial, sans-serif]20.2 The Author will be liable for and will indemnify the Publishers (for themselves and for their licensees, printers and distributors) against any and all costs, expenses, loss and damage (including any legal costs and expenses properly incurred and any payments made on legal advice to compromise or settle any claims) resulting from any breach or alleged breach of the warranties given to the Publishers in this Agreement.

This clause has me worried in that if someone brings even frivilous lawsuits of libel on this book then I would have to pay for the solicitor's fees to the publisher and also any settlement costs. My agent says that this is a standard clause and I guess that might make sense.

I did bring up my concerns and my agent forwarded these to the publisher to which I recieved the following reply...

" You know our position on indemnity. He needs
to be confident that there is nothing libellous in the book, and then there
shouldn't be any worry. I did have our lawyer look at the text to date, and
he didn't have strong concerns at all. We will take all precuation just as
he should.

The reality is that no author has ever lost their home or gone backrupt over
a libel claim - as far as I can see, monies lost come out of royalty
earnings/advances outstanding, but the principal of indemnity applies and is
stated in the contract. So it's up to him - even if he published this himself,
he'd face the same issue, but in that case his concerns about bankrupcy are
more likely to be realised in the case of a lost libel suit, as he is the
publisher."

So basically i'm being told that this is a standard part of the contract and I need to "stand over" my work, which makes sense I guess.

So my questions are..
Is this indeed standard?
Should I be concerned at all? or am I just being paranoid?

I really appreciate any and all advice. I have to give a final reply by Monday, and don't know what I'm going to do. I don't want to risk plunging myself and the wife into mountains of debt should there be a lawsuit and hefty settlement.

Thanks in advance for any advice and I'm sorry about the silly auto-formatting but I don't know how to turn it off.
[/FONT]

Cathy C · Feb 23, 2007

Yep. That's a pretty standard clause. Remember that in the event of a frivolous suit, the party bringing the suit would likely be liable to pay back your solicitor's fees and costs. Most every publishing contract has this clause and this one isn't terribly onerous. The ones to watch out for are the ones that require you to pay for ANY suit against the publisher (which opens the door to abuses like charging an author for suits by creditors for collection of bills--yeah, that really happens!) This one at least just holds it to the promises you've made.

JMHO, of course. But I wouldn't have any problem signing this. I will say that the first contract is always the most nerve-wracking. Hang in there and CONGRATS on the contract!

DeadlyAccurate · Feb 23, 2007

Kristin Nelson recently posted about Warranty Clauses. That might be helpful to read.

Klazart · Feb 24, 2007

thank you very much for the advice, I'm much more reassured now.

JanDarby · Feb 24, 2007

Just for the record:

Remember that in the event of a frivolous suit, the party bringing the suit would likely be liable to pay back your solicitor's fees and costs.

Not in the United States. In theory, a frivolous lawsuit can result in certain costs awarded, possibly even legal fees, but that generally requires extraordinary facts, and the courts are reluctant to declare cases frivolous except in clearly egregious situations. The general rule (in the US; it's even known as the "American Rule," with the British model being the reverse, at least historically, not sure what the UK does now) is that each party pays his own lawyer, regardless of who wins. Costs are often awarded to the winner, but "costs" in legal terminology are NOT the legal fees, but just the court filing fees and other relatively small expenses compared to the legal fees.

JD, not giving individual legal advice, but general information.

James D. Macdonald · Feb 24, 2007

Indemnity clauses are, unfortunately, common. If they won't drop the indemnity clause, insist that it include the words "...upon judgment finally sustained."

Given what they've told you, they shouldn't have any problem with signing the contract as amended.

(And why are you asking the messageboard this? Didn't your agent have any advice?)

Klazart · Feb 25, 2007

My agent did say that it was standard, and relayed my concerns to the publisher and relayed their opinion on it back to me. Her advice was a bit non-specific though, I guess she didn't want to push me into making a decision.

The other factor off course is that this is my first book, and while I do like my agent, I haven't yet reached the point where I trust her implicitly and take everything she says at face value. This is probably due in large part to my own paranoid nature than anything else.

thanks again for all the advice.

Publishing contract - need advice on a clause.

Klazart

Cathy C

Ooo! Shiny new cover!

DeadlyAccurate

Absolutely Fazed

Klazart

JanDarby

James D. Macdonald

Your Genial Uncle

Klazart