If you’ve ever seen a book contract, you know that its language isn’t the most accessible for those of us without a law degree. Luckily, the Legally Speaking column of our newsletter answers questions about legal issues specific to writers and publishing in general in a clear, easy to understand way. This week, attorney Dina Di Maio lays down the law of indemnity clauses.
My book contract includes an indemnity clause. Can you explain what this is?
Of course. I will also discuss a warranty clause, because you will see both in your contract, and both clauses go hand in hand. Simply put, an indemnity clause means that if someone sues your publisher regarding a claim involving your book, your publisher can then go to you to be compensated for its losses. In law, this is called indemnification. The other clause, a warranty clause, is just what it sounds like: where you warrant, or guarantee something, such as that you haven’t plagiarized or previously published the work. This clause can include things like warranting that there is no copyright violation, no defamation (libel), and/or no invasion of privacy. This clause often includes the violation of “any other rights of any party.” If you see this latter language, it is too broad. Defamation and invasion of privacy laws are state laws, so this would mean that you are guaranteeing that you haven’t violated these laws in any state. Throw in the internet, and you are then charting into murky international law waters as well.
The bottom line is that you don’t want your warranty clause to be that broad. Publishers, of course, want these to be broad so they are the least financially accountable for any claims or actions that may arise from your work, so they most likely won’t delete them. As the writer, what you want to do is make sure these clauses are, what we call in law, limited in scope. You want language in the warranty clause to include the phrase “to the best of the writer’s knowledge” when discussing libel and invasion of privacy. For example, “Writer warrants to the best of writer’s knowledge that Work does not violate any right of privacy.”
Ideally, you want your indemnity clause to indemnify the publisher only for “a final judgment for actual damages for a breach of the warranties” that you warrant in your warranty clause. Some contracts include language for “all/any claims or actions” that arise from your work, but you want the more specific language in the preceding sentence because you don’t want to be liable for any frivolous claims.
Some of these clauses in book contracts include that the publisher can withhold royalties if a suit is filed regarding your work. By industry standards, withholding royalties for this reason is not acceptable, but if you do have such language in your contract, make sure the contract states that the amount must be reasonable, or negotiate a percentage to be stipulated in the contract.
In your warranty clause, you also want to include that if your publisher adds anything to your work, illustrations, charts, text, etc., that you have no liability for those additions.
Keep in mind that large publishers have insurance and may be able to cover you at no cost, but make sure it is in your best interest to do so. Get information about the publisher’s insurance, such as if you would have to pay part of the deductible. If you are insured under your publisher’s insurance, make sure that is stated in your contract as well. If you do have to pay a deductible, make sure it is reasonable. If you write high-risk works, you may want to consider buying your own insurance.
It is good practice to talk to your publisher if your work is something that you think may raise legal questions, such as a celebrity tell-all, a memoir, or a fictionalized memoir. Your publisher may have a legal department that could review your work. If you suspect any legal issues with your book, it is best to see an attorney with knowledge in this area to assess your particular situation.
Dina M. Di Maio is an attorney licensed in New York and Tennessee. She holds an MFA in creative writing from NYU and has written for Glamour, Family Circle, Time Out New York, Vault.com and more. She worked in the legal department of the Authors Guild and is currently a member. She loves dining out in NYC and has a food blog, Hunting for the Very Best.
Right now, Dina is reading a good foodie book, A Year in the Village of Eternity by Tracey Lawson.
*This is for informational use only. For legal advice on your specific situation, please see an attorney.