Today I welcome back Attorny Kathryn Goldman for Part 2 of our 4 part series on Dissecting a Publishing Contract. Take it away, Kathryn!
In last week’s post, we examined the Grant of Rights provision in a traditional publishing contract—What is the Grant of Publisher Rights in a Publishing Contract?
This week, we’re going to take a look at the promises an author makes about her work. These promises are generally referred to as warranties.
Here’s the text of an author’s warranty clause from an actual contract [the contract language is in black, my comments are in blue and not part of the contract]:
Authors Warranty. The Author hereby represents and warrants to the Publisher the following:
a) He/she is the Author and sole owner of the work, or has been assigned exclusive rights to the work.
What you need to know:
- You are the owner of any work you create.
- You do not have exclusive rights to any work you did not create (such as images or song lyrics, for example) and which you may have used in your book, unless you purchased those rights.
- If you did purchase rights to any portion of your book, that purchase of rights (also called an assignment) must be in writing signed by the creator of those pieces of work.
- In order to include the work of others in your book, the rights you secured must be the same rights that you granted the publisher in the Grant of Rights provision we discussed last week.
b) The work is original and no part of the work was taken from or based on any other literary, dramatic, musical, film, or graphic arts, except as identified in the writing by the Author.
What you need to know:
- This is the provision in which you are declaring the originality of your work.
- You are stating that you have not developed your story as a derivative of anyone else’s work.
- Keep in mind that this notion of originality applies to any rights to work you may have purchased to include in your book. So, if you did buy someone else’s work to include in your book, make sure that they give you a warranty of originality in the assignment.
c) The work does not infringe upon any copyright, privacy rights, rights of a third party, or any common law or statutory law.
What you need to know:
- The promise that you did not infringe anyone else’s work is the flip side of the warranty of originality—it’s like a belt and suspenders from the publisher’s perspective.
- The promise that you are not invading any privacy rights or rights of a third party means:
- You aren’t intruding on anyone’s seclusion (telling secrets about a person that not everyone knows, for example);
- That you haven’t used the name or likeness of another person without their consent; or
- You haven’t depicted anyone in a false light by attributing to them offensive characteristics, conduct or beliefs which they do not have.
- The common law or statutory law phrase is in there as a catchall. You are promising generally that your work isn’t breaking any laws.
d) The work does not contain any material of a libelous or obscene nature.
What you need to know:
- Defamation which is libel and slander are potential problems if you are using real people in your fiction. For an in depth discussion you can refer to this post: A Fiction Writer’s Guide to Using Real People in a Story.
- Obscenity is a slippery concept. Depending on your genre, you may need to negotiate this out of the contract
e) The work is not in the public domain, and has not been published in any format with any company that may still own such rights to the work.
What you need to know:
- The publisher wants to be sure that no one else can publish this work.
- This is different from originality. This is about exclusivity, the publisher wants to be the only entity to offer your work to the public.
- This is the provision that makes serializing your work on a blog in order to build an audience before finding a publisher problematic. If you had done that, the work would have to come off the site.
f) The Author holds the full power of Authority to grant these rights.
What you need to know:
- This sentence means that you are who you say you are and you have the rights that you say you have.
- Basically, you cannot contract away that which you do not own.
g) If this work has been previously published in any form, the Author warrants that the rights granted herein have been reverted to her/him. As an addendum to this agreement the Author shall provide a written memorandum documenting the reversion of the rights granted by any publishing company that may still own proprietary right to the work, along with documentation from the previous publisher stating that all rights belong to the Author, if such documentation is requested by ABC Publishing.
What you need to know:
- As with paragraph (f), this goes to exclusivity.
- The publisher does not want to spend time and money producing and marketing a book only to be in competition for the same market with someone else.
h) If a judgment is obtained against Publisher for usurping rights still controlled by a Publisher or other entity other than the Publisher or the Author, the Author agrees to hold the Publisher harmless and to indemnify the Publisher for damages and costs. If Publisher prevails against a suing party or resolves the matter by an out of court settlement, the Author will be liable to indemnify the Publisher for defense and settlement cost.
What you need to know:
- This is where you are putting your money where your mouth is. If you fail to control the rights to your work and there is someone else out there with the right to publish your work, you may end up paying for that broken promise.
- The key here is to carefully monitor all of your contractual obligations. If you’re slicing and dicing rights to your work as we discussed last week, you need to keep track of which rights you’ve granted and to whom. Good bookkeeping is paramount.
- Consider negotiating this clause so that:
- Any indemnity is limited to the amount of money paid by the publisher to you for the particular title at issue (that will cap your risk, limit your potential exposure);
- The publisher cannot settle any claim without your consent (you are in a better position to determine what may be a bogus claim); and
- You have the right to participate in the defense of the claim being brought including picking the lawyer (if you have to pay, you want to keep the costs down).
i) Author agrees to hold Publisher harmless and indemnify the Publisher against any claim, demand, action, suit, proceeding or any expense whatsoever, arising from claims of infringement of copyright or proprietary rights, or claims of libel, obscenity, invasion of privacy, or any other unlawfulness based upon or arising from the publication or any matter pertaining to the work.
What you need to know:
- This is the liability clause for other promises you have made in the contract. If any of the rights, claims of originality, privacy protections, etc. that you promised in the earlier paragraphs turn out not to be true, or yours, or you violated in some way. This is where you pay the publisher for any problems your broken promises may have caused.
- Again, consider negotiating this clause so that:
- Any indemnity is limited to the amount of money paid by the publisher to you for the particular title at issue (that will cap your risk, limit your potential exposure);
- The publisher cannot settle any claim without your consent (you are in a better position to determine what may be a bogus claim); and
- You have the right to participate in the defense of the claim being brought including picking the lawyer (if you have to pay, you want to keep the costs down).
j) Author warrants and represents that to the best of Author’s knowledge and belief, all statements of fact contained in the work are true and based on appropriate and diligent research.
What you need to know:
- If you are representing something as a fact in your work, you have done sufficient research to support your contention that the fact is true. The true fact provision.
k) Author warrants that he/she will not hereafter enter into any agreement or understanding with any person or entity that would conflict with the rights granted to the Publisher during the term of this contract.
What you need to know:
- This is where you promise not to grant rights to any other person or publisher that conflict with the rights granted in this contract.
- If you are dividing up your rights to create multiple revenue streams, you need to pay careful attention. Monitor your rights and keep good books.
l) The author will not, without the written consent of the Publisher, write, print, publish or produce, or cause to be written, printed, published, or produced, during the continuance of this agreement, any other edition of said Work or any work in any form of a similar character or title tending to interfere with or injure the sale of the Work in any manner.
What you need to know:
- This provision needs to be deleted if you have divided the rights to your work as we discussed last week.
Remember Contracts are Negotiable
Next week we’ll discuss another provision in a traditional publishing contract.
Kathryn Goldman is a lawyer who protects writers, artists, filmmakers, and businesses from having their work and art ripped off. Since she’s a lawyer, she has to mention that she’s not *your* lawyer (so this article isn’t technically legal advice, just educational), but you’re still invited to download her Digital Artists Rip-Off Protection Report. You can also follow her on Twitter @KathrynGoldman
Author Kelly Abell 