Part of a successful contract between a publishing house and an author is trust. Each party must trust the other to perform certain tasks for the benefit of the book and the contract. To ensure that the parties are serious about the trust they are placing in one another, these promises are written into the contract as warranties and indemnities. The author guarantees a certain quality and level of professionalism and also promises to pay for any fallout resulting from his or her work. Below are examples of some of the author’s warranties and resultant indemnities that may be included in a contract.
In the first part of the warranties and indemnities clause of the contract, the author promises certain qualities of the manuscript. These may vary from contract to contract, but the following are the standard warranties:
- that the author is the sole author of the work and sole owner of the copyright
- that the work is an original work, has never before been published, and does not infringe on the copyright of any other work
- that the work is not libelous, in violation of any right of privacy or publicity, and is not otherwise contrary to law
These warranties protect both the author and the publisher from scrutiny. Essentially, if the author agrees to these guarantees, he or she is promising that the manuscript will not face criticism for any of the above situations. This also protects the publisher from criticism if the author’s warranties are true. If the author has lied about the warranties, however, the indemnities clause aims to protect the publisher from future legal or public fallout.
According to the Merriam-Webster dictionary, to indemnify means “to protect (someone) by promising to pay for the cost of possible future damage, loss, or injury.”
The indemnities clause in an author’s contract protects the publisher if the author’s manuscript receives criticism and threats of legal action. The language in each contract varies, but in general, it states that “the author shall indemnify the publisher from any loss, damage, expense (including reasonable attorneys’ fees), recovery or judgment arising from any breach or alleged breach of any of the author’s warranties.”
Then, limitations are specified, some of which may be:
- that each party shall promptly inform the other of any claim made against either which, if sustained, would constitute a breach of any of the author’s warranties
- that, if the publisher wishes to settle on its own behalf any claim made against it, it will consult with the author and give serious consideration to any objections the author may have, and they will agree in writing on the percentage of any such settlement costs that each will bear
- that, if any such claim is successfully defended, the author’s indemnity will be limited to a percentage of the costs incurred by the publisher in the defense of the claim
In addition to these indemnities, prior to the first publication of the manuscript, the publisher will have the work read by its counsel at the publisher’s expense. The author may be asked to make changes, and if he or she does, the author’s indemnity will be limited if any claims arise. If the author refuses to make changes recommended by the publisher’s counsel, the publisher no longer has an obligation to publish the manuscript and has the right to recover the author’s advance.
The warranties and indemnities in a contract may frighten first-time authors, but if the work is “above-board,” so to say, there is nothing the author needs to worry about. For the most part, these clauses exist to protect the publisher from material that will be challenged legally. Most authors need not worry about that. To make it even less likely that your work will be challenged, it is always a good idea to cite all sources and take into serious consideration any recommendations an editor or publisher’s legal counsel makes. If you maintain a level of professionalism in your work that assures you have not plagiarized, committed libel, or otherwise broken the law, these clauses will likely never again be mentioned after the signing of the contract.