And the reason these clauses and all their separate elements are important is because if any representations turn out not to be true the author may be deemed in breach of the agreement, entitling the publisher to such remedies as are provided in the agreement and by law. These remedies can include holding back further advances or royalties and other remedies. Additionally, in the event of any breach of any of these representations and warranties, the author could be in the position of having to pay substantial amounts of money to defend his or her work, including paying the publisher’s attorneys fees and costs as well as possibly damages, costs and attorneys fees to the other party in the event that that other party prevails.
On the other hand, from the publisher’s point of view, such provisions are designed to make the author stand behind his or her work and to offer a measure of financial protection in the event that claims are made.
Thus let me examine some of the points of the warranty and indemnity provisions with explanations below the provisions. This article is not intended to discuss all the points that may be included in such provisions nor all the variations on language. Further, I do not take any position on these clauses since I represent authors as well as publishers (although clearly not in the same transaction).
Some Warranty Provisions
There are many provisions in any book contract and this representation covers the entirety of the agreement and in the event that any provisions are breached etc. the author may be in breach of the entire agreement. (I leave aside for the sake of brevity any discussion about material or immaterial breaches).“Author warrants and represents to Publisher that the Author has the right to enter into this Agreement and grant the rights granted in it;”
Ultimately of course the author has to stand behind the work. But given the vagaries of the copyright laws and privacy, defamation, publicity and other laws, this provision is quite wide open from the author’s standpoint and yet essential from the publisher’s standpoint. See discussion below about licenses.“that neither the Work nor entering into this Agreement will impair or violate anyone else’s rights including but not limited to rights of privacy, rights of publicity, libel or infringement of copyright or any other rights;”
When a work is copyrighted, the copyright applies to the work as a whole but is not deemed to protect every single element of the work if such elements are not copyrightable or are in the public domain. These elements may consist of titles, short phrases, lists of material etc. as well as more traditional forms of public domain materials.“that neither the Work nor any portion thereof is in the public domain;”
If the author has previously published any of the material in hard copy form or on the web such as in news groups, mailing lists or on any web site, this should be disclosed and possibly excluded from the scope of this provision. (Read “Electronic Publishing and the Potential Loss of First Serial Rights.”)“that no portion of the Work has heretofore been published;”
When using material from other sources, licenses should always be obtained and generally, the publishing agreement imposes the burden to obtain such licenses on the author. Those licenses must grant the author the same rights that the author is granting to the publisher. otherwise the author may be deemed to be in breach of this provision or other provisions of the warranty provisions as indicated above. (Read “The Gap Trap,” “Screen Shot Liability for Computer Book Authors” and “The Permission Form”)“and that the Work is original with Author except for portions for which Author has obtained or will obtain permission under paragraph [x] of this Agreement.”
Some Indemnity Provisions
This provision gives the publisher the right to control the defense of any claim including the right to settle it. It is not limited to civil litigation actually filed.“If a claim, action, or proceeding is brought against Publisher, its licensees, or any seller of the Work, based on facts which, if true, would violate any of the warranties or representations in this Agreement, Publisher may defend the same through counsel it chooses and may settle the same in its sole discretion.”
This provision makes the author liable for all the publisher’s (and the other indicated parties’) costs, damages, attorneys fees and the like relative to any claim whether or not the claim is held valid. As with the prior clause, it may also mean that the indemnity commences whenever a claim is made even if there is no litigation filed. Together with the following clause, the two provisions together can be significant in their scope.“Author shall hold harmless Publisher, its licensees, agents, shareholders and officers and directors, its distributors and retailers and other sellers of the Work against any claims, demands, costs, and damages, including attorney's fees, whether or not a breach of these warranties is finally sustained.”
The issue of “cross-collateralization” comes up since the publisher may resort to monies due the author under other agreements the author may have with the publisher to satisfy the claim. It may thus cause the author to be without any income from the publisher during the potentially long period of the litigation, which could last for years. (See “Cross Collateralization in Publishing Contracts” and “Further Fallacies About Cross-Collateralization”)“Publisher may withhold from sums otherwise due Author under this agreement or any other agreement between the parties any amounts reasonably equivalent to the amount Author would owe Publisher, its licensees, officers, directors, shareholders, distributors, retailers and other sellers of the Work under this paragraph.”
Meaning that the “tail” of the author’s liability extends beyond the term of the agreement. However, since claims can arise even after the agreement is terminated, this provision protects the publisher in such event.“These warranties and indemnities shall survive the termination of this Agreement.”
As I indicated, even though these provisions may appear strong from the author’s point of view, the same provisions can be seen from the publisher’s point of view as essential.
Copyright © 1996, 2003 Ivan Hoffman. All Rights Reserved.