Blank Check

You’re a writer. Naturally you’d like to see your book(s) published by a real New York publishing company. If you’re very good at what you do, and have a dose of luck on your side, you may be offered a contract for publication. Hooray — time to break out the bubbly!

Before you sign that contract, though, there may be one or two things you’ll want to think about.

Just to be clear, I’m not an attorney. I cannot and will not offer qualified legal advice to anybody on the subject of contract law. However, I’ve read (and signed, when I was younger) a few publishing contracts. I offer the following observations in order to suggest that you may perhaps want to seek out expert legal advice. And it’s possible you may not like what an attorney tells you.

This is about indemnification. Indemnification is a process by which you, the author, warrant that your book contains nothing that is in violation of any other copyright (that is, that it’s entirely your original work), that it is not defamatory or libelous, and so on. In the event that the publisher receives a complaint alleging that you have violated anything in the warranty, the publisher’s lawyers will handle it — but YOU will pay the lawyers’ fees. Not the publisher; you personally.

That’s indemnification. You’re indemnifying the publisher against possible financial losses.

This week I received a contract from Oxford University Press for a nonfiction book on the subject of modular software synthesizers. It’s a field in which I have some expertise. In August I sent them a detailed book proposal. They liked the proposal, so they offered me a contract. And inevitably, the contract contains a standard indemnification clause. Here’s the text:

The Author agrees to indemnify and hold harmless the Publisher, its affiliates, assignees, and licensees and its and their respective directors, officers, members, managers, employees, agents, distributors and customers (each, an “Indemnitee”) against any damage, loss, liability, injury, or cost or expense (including without limitation reasonable attorneys’ fees and costs), settlement or judgment arising out of any claim (a “claim”) by third parties that any of the above representations or warranties has been breached. If a claim is brought against an Indemnitee, the Publisher will have the right to defend with counsel of its own choice.

This is a bit murky grammatically, possibly owing to the failure to use the Oxford comma. (You’d think Oxford University Press would use their own damn comma, but whatever.) Or maybe the word “or” before “cost” ought to be deleted. Shorn of bafflegab, what this says is that if anyone comes out of the woodwork and makes a bogus claim about my book — that it infringes copyright, damages the reputation of their fine software company, or whatever — I have to pay the “reasonable” attorneys’ fees for settling the claim. As if attorneys’ fees were ever reasonable.

In other words, I’m being asked to sign a blank check. There’s no requirement that I be found actually to have breached any warranty. If there’s a claim that I have breached a warranty, I’m on the hook for the lawyers’ fees.

Here’s the relevant portion of the warranty, in case you’re curious. By signing the contract, I warrant that “the Work is in no way whatsoever a violation or infringement of any existing copyright or license or duty of confidence or duty to respect privacy or any other right of any person or party; neither the Work nor any material portion thereof is, or will be during the statutory term(s) of copyright, in the public domain; the Work contains nothing that violates any right of privacy, is defamatory or otherwise violates any other right of any kind of any person or entity, nor does the Work contain anything that is obscene or in any other way unlawful or misleading.”

Read that carefully. If there’s an unsubstantiated, bogus claim that my book “violates any … right of any person or entity,” the lawyers for Oxford University Press will write a big fat number on my blank check and take it to the bank.

Again, I’m not a lawyer; there may be nuances here that I’m not aware of; but that’s sure what it looks like to me.

The acquisitions editor at OUP (a nice guy) tells me that it’s not just his own company lawyers that insist on this language. OUP has liability insurance in case they get sued — and the insurance policy requires them to include this language in their contracts with writers.

In defense of lawyers (not that they need any), it’s their duty to protect their clients by fobbing off the risk of any transaction onto the other party in the transaction. If they fail to do this, they’re not doing their job. So they pass the financial risk on to the weakest person in the room, namely, the author of the book. Without whom they would all be standing on a street corner selling pencils, because it’s the authors who create the wealth that keeps the publisher in business and allows the publisher to hire lawyers.

If you’re a young author building a career, this may not concern you too much. You may prefer to go ahead and sign the contract. First, having a published book will help your career. Second, the probability of a claim is remote. Third, if the lawyers come after you demanding money, you can just declare bankruptcy and start over.

I’m not in that category. I’m not building a career; I’m retired. I don’t need to write a book; I’m offering to write one. And as a retired person with some savings and no income except Social Security, I’m not in a position to declare bankruptcy and start over building a new nest egg. That being the case, I’m absolutely not willing to push my entire IRA and also the deed to my house into the center of the poker table and bet that nothing bad will happen.

Too bad. It would have been a good book.

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