Mark Terry

Tuesday, January 18, 2011

Book Contracts 101, Part 6 (Author's Warranties)

January 18, 2011
Continuing on to the next clause.

3. Author's Warranties: Author warrants and guarantees to Publisher that the Work is original except for such material from copyrighted sources as is produced by written permission of the copyright holder; Author is the sole owner of all rights granted in, has full power to enter into this Agreement and such rights are not subject to any prior agreement, lien or other right that may interfere with Publisher's rights hereunder; the Work is not libelous or a violation or infringement of any copyright or civil right of any other party, and Author agrees to secure, prior to delivery of the manuscript, and deliver to Publisher all necessary permission for the use of photographs, quoted or excerpted material from other published works, and said permissions shall include the grant to Publisher of primary and subsidiary rights. Author agrees to hold harmless and indemnify Publisher against any claim, loss damage and expense (including reasonable attorney's fees) arising out of any breach of Author's warranties. In no event shall the Publisher be obligated to publish a work which, in its opinion, may subject it to any claims from any third party. The warranties, representations and indemnities shall survive the termination of this Agreement.

Okay, I think this is fairly self-explanatory, but let me get right to the heart of the matter: this is a CYA (cover your ass) clause for the publisher, so that if for some reason you plagiarized someone or are sued by somebody, they're pushing it all off on you. For the most part, novelists don't get sued a lot unless they're huge--JK Rowling, for instance, and Dan Brown. Nonfiction writers are sometimes sued, depending on the nature of the books. My understanding is that true crime writers get sued often. I'd read once that Joseph Wambaugh, who wrote both fiction and nonfiction, had been sued over every single true crime book he ever wrote. I don't know if that's true, but I would imagine that if I were Wambaugh's agent, for nonfiction books at least, this clause would be tinkered with a bit. Publishers, after all, are better insured than writers. Also, if I were writing true crime books, I'd have a long talk with my insurance agent about liability insurance.

Just a couple points. First, lawsuits for plagiarism, etc., often target the publisher AND the author. There's a reason for this. The publisher has the money. That's probably also why bestsellers get targeted as well (no probably about it, actually). Second, one of the things I see in this clause is that the publisher wants to make sure not only that you didn't plagiarize the work, but that it's available to be published. What comes to mind are writers who have been published by other publishers; the new publisher wants to make sure the old publisher doesn't have some legal hold on this manuscript.

And, of course, the publisher wants to be able to throw everything back in the writer's lap if anything goes wrong. I'm not a lawyer, but my guess would be that this clause doesn't, in reality, create a lot of real-world protection for the publisher. The lawyers will still file the lawsuits and if there's a lot of money involved and the publisher tries to throw it all back on the writer, the writer will quite likely file a countersuit against the publisher, and the whole thing will be messy and ugly and my guess is that the only people really happy with the situation would be the lawyers getting paid no matter what the outcomes are. It seems to me that lawyers often file lawsuits in hopes that the person being sued will just cough up some money to make the whole thing go away, rather than risk a jury awarding a few million dollars to a sympathetic lawyer, er, sympathetic complainant. Anyway, that's what this clause is all about.


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