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Contract Clauses 13 to 15

Did I mention Indemnity clauses?



Author's Warranties and Indemnities

13. a. The Author warrants and represents that the Author is the sole author of the Work, the sole owner of all the rights granted to the Publisher, and that the Author has not previously and will not assign, pledge, or otherwise encumber such rights; that the Author has full right and power to enter into this agreement and to grant the rights herein granted; that except for the material of others obtained under the provisions of paragraph 3 hereof the Work is original, has not been published before, and is not in the public domain; that it does not contain any material which violates any right of privacy, which is libelous or which violates any other personal right of any person; that the Work is not obscene; that no material in the Work infringes upon any statutory or common law copyright or other proprietary right; that no material in the Work violates any contract of the Author, express or implied, or discloses any information given to the Author in confidence or on the understanding it would not be disclosed or published; and that any recipe, formula or instruction contained in the Work is not injurious to the user.

Hi. I promise that no other publisher owns the right to distribute this work, and that I wrote every single word of it myself and didn't plagiarize. Honest. Oh, and it's not porn, or at least not of the illegal variety. And that it isn't The Anarchist's Cookbook, or if it is, that, umm, no one will get hurt by paying attention and attempting to use the book as a manual. [About which: someone came into the store asking for it. It's the only time in my entire life that I can remember in which the person asking for that book wasn't a teenager. Go figure.]

If, however, I'm wrong…

In the event of any claim, action or proceeding against the Publisher, its licensees, or any seller of the Work, based upon an alleged violation of any warranties and representations herein, (i) the Publisher shall have the right to defend the same through counsel of its own choosing, and (ii) no settlement shall be effected without the prior written consent of the Author, which consent shall not unreasonably be withheld, and (iii) the Author shall hold harmless the Publisher, any seller of the Work, and any licensee of a subsidiary right in the Work, against any damages (including reasonable attorneys' fees) finally sustained. To the extent that such claim, action, or proceeding is based upon libel, invasion of privacy, obscenity or bodily injury, if such claim, action or proceeding is successfully defended or settled, the Author's indemnity hereunder shall be limited to 50% of the expense (including reasonable attorneys' fees) attributable to such defense or settlement.

This kind of sucks. You don't get a choice in attorney, and you're stuck with 50% of the cost of a settlement. Unless you plagiarized the book, in which case, you're probably stuck with all of it.

For a first time novelist, in my experience no one will change this. I'm not sure that they'll change it for a big name novelist, although one imagines there might be some room; legal gets a lot of say. I also imagine that this is far more important for things like biographies, etc., than it is for fiction in terms of it coming home to roost.

c. If any such claim, action or proceeding is instituted, the Publisher shall promptly notify the Author, who shall fully cooperate in the defense thereof, and the Publisher may withhold payments of reasonable amounts due the Author under this or any other agreement.

This means that you'll never see another cent from your book if it had earned out, but that you won't have to sell your house.

d. These warranties and indemnities shall survive termination of this agreement.

People can sue you for anything to do with the book Publisher published at any point and you're still stuck, even if the book is at the time out of print, available only used, the rights reverted, etc.

e. If in the opinion of Publisher's legal Counsel the Work is unpublishable or will unduly subject the Publisher to risk of legal claim or contains unlawful material, then Author at Publisher's request will make changes and revisions in the Work satisfactory to Publisher's legal Counsel, or Publisher at its option may make revisions its legal Counsel recommends. Nothing herein and no changes or revisions made hereunder shall be deemed to affect the warranties and indemnities made by Author herein.

Legal Counsel often means the legal department, and they can be an total pain. They can be wonderful in other ways -- but if you get the right, over-zealous person, you can find yourself removing the use of the word "Kleenex" and "Asprin" or "Coke" from every piece of dialogue you write. Not that I have this problem, given what I've published vis a vis novels, but I've heard of plenty of other people who have. It's not universal, though. Because then you'd be able to predict things <wry g>.

Of course, they can probably lose their jobs if they're wrong or they miss something, so I suppose it makes sense.

Conflicting Publication

14. The Author shall not during the term of this agreement publish or permit to be published any material in book, pamphlet or other printed versions or in microfiche, filmstrip, sound recordings, or electronically recorded or reproduced forms (sound and/or visual) based upon material in the Work or which would directly compete with its sale.

Conflicting publication seems to be so loosely defined as to be non-existent in practical terms. Which is my shoddy way of saying that I didn't actually remember this clause until I typed it…

Copies to Author

15. Upon publication of the Work Publisher shall give the Author ten (10) twenty-five (25) free copies of the Work and the Author may purchase additional copies, if available, at 40% from the *invoice price not for resale.

I hear, frequently, that if you order books directly from the publisher, you don't get royalties on the sale. In this case, I had better, given the discount. I've asked two different representatives from large publishers with whom I don't publish, and they've also said that author's copies do receive royalties. But since the rumour is persistent, I'm curious to know how many of you who are published have encountered cases in which you don't or </i>didn't</i>. I have one contract with a small press publisher in which I can buy copies at a 60% discount from the retail price from the publisher -- but in that case I wouldn't expect to get royalties, and the contract specifies that at that discount, I don't.

Oh, and the boiler-plate here is, as you can see, 10 free copies. I vastly preferred 25. I didn't, in that case, get to keep them all, though; they were shipped to my agent, and he kept the copies he would then use for foreign agents.

That's it.

Comments

( 14 comments — Leave a comment )
(Deleted comment)
alfreda89
Sep. 21st, 2004 07:59 pm (UTC)
I sold specific electronic text rights to my last book with HarperPrism--it was almost a deal breaker, they'd accepted the signed contract, and then told us, "Oh, no, that person didn't have the authority to allow those terms for electronic rights." My agent said "Bye!" and they said "Wait!" All they really wanted was verbatim text rights--which we sold them for an extra amount of money.
msagara
Sep. 21st, 2004 08:35 pm (UTC)
I've seen similar clauses on "competing publications" for a brief period after first-publication, and have occasionally wondered just what those publications would be, myself. Not that it's ever been, or is likely to be, an issue for me.

For a short story? Usually what's bought is first NA serial rights (sometime world), and non-exlusive full reprint rights (if the whole magazine or anthology is reprinted, but they can't in theory sell it wholesale). Since they don't own all the rights forever, non-competition here makes sense to me -- they usually want those first serial rights to give them a window of, say, a year before you can then anthologize the story or sell it elsewhere. So this one makes sense to me.

In practice, I know people who have agreed to this and then gotten permission to publish the short story before that period had expired (and in one or two cases, due to publishing delays, before the story which was in theory bought as first NA saw print in the original publication, but I digress).
twiegand
Sep. 21st, 2004 07:03 pm (UTC)
Thank you for taking the extreme amounts of time to type this in and explain it all to us. This has been very informative and I appreciate what you may have sacrificed to let the rest of us see it. Oh, the things Jewel could be doing.
merriehaskell
Sep. 21st, 2004 07:38 pm (UTC)
I second the thanks. It's nice to have a view of the kind of trouble fun I hope to get into someday.
alfreda89
Sep. 21st, 2004 08:17 pm (UTC)
I can't find any of my contracts right at this moment (and where is that box? Under the other 200 boxes...) but I know my first contract inserted a line saying basically that the publisher couldn't just settle any nuisance suit that came along, and then bill me for half of it--do you remember how to change this clause to provide a small amount of protection?

Or did my old agent really get me something unusual?
msagara
Sep. 21st, 2004 08:44 pm (UTC)
I can't find any of my contracts right at this moment (and where is that box? Under the other 200 boxes...) but I know my first contract inserted a line saying basically that the publisher couldn't just settle any nuisance suit that came along, and then bill me for half of it--do you remember how to change this clause to provide a small amount of protection?

Or did my old agent really get me something unusual?


I believe it can be changed so that you have to give your (not unreasonably withheld) approval for defense of suit. Usually the publisher is going to be named anyway, regardless of whether or not you've agreed to hold them blameless contractually -- because the other party (i.e. the one doing the suing) sure didn't <wry g>.

"No settlement of a claim, suit, action or proceeding shall be final without Author's approval, which shall not be unreasonably withheld..."

Which is sort of clause 13.b.ii -- "no settlement shall be effected without prior written consent of the Author, which consent shall not unreasonably be withheld".

I'm not sure what the legal "unreasonably" means in this case. The publisher has maintained the right to hire its own legal counsel. But, umm. I guess if you don't want to settle, the whole thing can go to court, and the court can settle it for you, which will cost more.

Since I've never seen anyone sued for SF/F books before (there were one or two cases of plagiarism that tickle the back of my mind, but no particulars), I'm not sure how it works on a practical level.
alfreda89
Sep. 22nd, 2004 07:45 am (UTC)
There was plagiarism on a cover, once--I don't remember if it went to court, but I think Whelan received some payment for it.

And there was a high-profile plagiarism with a couple of big romance writers.

If I remember once the contracts box surfaces, I'll check and see if it had anything useful in that clause.
msagara
Sep. 22nd, 2004 08:41 am (UTC)
I remember the romance authors: Janet Dailey and Norah Roberts, neither of them midlist writers. In fact, neither of them even close to the midlist. That was very big.
alfreda89
Sep. 23rd, 2004 09:49 am (UTC)
It was big--and I remember the author whose work was stolen was exasperated because some people were feeling sympathetic toward the thief because the other claimed that stress over her spouse's health, etc. etc. caused her to pinch the stolen paragraphs! The offended against pointed out that she had bills and ill health to deal with, too, but she hadn't stolen from anyone else...

The horrifying thing is, I don't remember who offended and whom was offended against...

I checked my first contract--Warner used a different numbering system. 12.) was Author's Warranties, 13.) Indemnity, and what I was remembering was Warner's clause 14.) Infringements--where we made changes that Warner did not object to. Dealing with copyright infringement, where Warner had the right but not the obligation to pursue copyright infringement. So Warner considered our changes to the Infringement clause reasonable.
msagara
Sep. 23rd, 2004 11:51 am (UTC)
The offender was Janet Dailey. The offended, Norah Roberts. They were both NYT bestsellers, they were both making a lot of money -- no one could figure out why Dailey had done this.

But it really killed her career.
alfreda89
Sep. 24th, 2004 07:14 pm (UTC)
no one could figure out why Dailey had done this.

But it really killed her career.


As someone who has a distinct voice, I can't imagine trying it--it could only work trying a new pseudonym.

It certainly didn't buy her time in the way she was hoping for...sad.
mmarques
Sep. 21st, 2004 08:47 pm (UTC)
I understand the pain regarding changes by Legal. I work as a technical writer; when the small company where I worked was acquired by a large company, I had to start submitting all my manuals to 3 legal-type groups in head office (Legal, Regulatory Affairs, and Trademark).
drunkencricket
Sep. 24th, 2004 01:43 pm (UTC)
Legal Counsel often means the legal department, and they can be an total pain. They can be wonderful in other ways -- but if you get the right, over-zealous person, you can find yourself removing the use of the word "Kleenex" and "Asprin" or "Coke" from every piece of dialogue you write. Not that I have this problem, given what I've published vis a vis novels, but I've heard of plenty of other people who have. It's not universal, though. Because then you'd be able to predict things.

Actually, though people may scoff, this is an exceedingly important item for a lot of companies out there. Band-Aids, Xerox, Kleenex, Coke, Cuisinart - all are used without regard to trademark in some areas, but the problem is that if a Trademark Name starts to become a generic name (Xerox(tm) becomes xerox, noun and verb), it can cause the destruction of the ability to define your product as the [Xerox, Band-Aid, Coke...] and when another company comes along and calls themselves Zerox and makes the same product, you're out of luck. No one can infringe on your trademark name if it has already been weakened by people making it lowercase generic nouns!

It is a very important part of business to keep your Trademark Name as YOUR Trademark Name. It is a fine line have a famous, popular brand name that is used everywhere and having your Trademark Name taken in vain and making you lose that Trademark right.

Aspirin, I believe, used to actually be a Trademark Name - but through the years it was used to mean anything made of acetylsalicylic acid, not just Bayer's version, and so now we have Bayer Aspirin, as well as a host of others (Acuprin 81, Bufferin, Easprin, Ecotrin, Empirin, Halfprin, Norwich Aspirin, St. Joseph Aspirin, Zorprin - all of which can use "aspirin" on their labels).

The absolute minimum is capitalization. Preferably, a (tm) would be there. If you want to talk about a bandage someone puts on their child's boo boo in your story, don't call it a "band aid" - call it a Band Aid or an adhesive bandage, or even make up a "homemade" name: "boo boo blanket" or something. Infringing on trademark can get authors and publishers in horrible trouble if the Trademark holder gets upset. I don't want SC Johnson after me!

(OK, delurking to air concerns about something that was hammered home in multiple courses through the years of my higher education. It does make a lot of sense if you know the history of legal trademarks.)
(Deleted comment)
( 14 comments — Leave a comment )