Wednesday, 12 May 2010

How to read a publishing contract (12)

Today we do a clause which you need to take seriously. It has led to the downfall of many a greater writer than you and I (though usually because the writer has been sued by someone other than the publisher). This is a very important clause if you are writing a revenge novel after your husband/wife/lover/friend/boss has destroyed your life and your only recourse is to write about them.

12. Warranty

The Author hereby warrants to the Publishers and their assigns and licensees that she has full power to make this Agreement, that she is the sole author of the Work and is the owner of the rights herein granted, that the Work is original to her, and has not previously been published in any form in the territories specified in Clause 1 hereof, that the the Work is in no way whatever a violation or an infringement of any existing copyright or licence, that it contains nothing obscene, libellous, defamatory, blasphemous or other unlawful matter, and that all statements contained therein purporting to be facts are true, and the Author further warrants that any recipe or formula contained in the Work is not injurious to the user.

There is a hell of a lot in here. It means, basically - put one foot wrong and we'll have your house, scummy writer.

is the sole author of the Work... the Work is original to her...: This means you have to have written the work. All of it. So that phrase from a Beatles song, the bit the main character reads aloud from Twilight, the part where you have the sound of a Dr Who episode in the background - all those are NOT original to you and are in breach of this bit: 'the work is in no way whatever a violation or an infringement of any existing copyright or licence'.

has not previously been published in any form: so if you have published it in weekly instalments on your blog, or you put the whole thing up on your website (or a website where other people can crit your work), or if it is a reworking of something you published with a different publisher - even a small publisher, or a vanity publisher, or you self-published it - then you are in breach of this clause already. If you have done any of these things, tell your publisher about them now. Chances are, unless you have already published with a real publisher (and you will probably have signed a competing works clause that prevents you republishing it) your current publisher will say it doesn't matter - but you do have to tell them.

that the the Work is in no way whatever a violation or an infringement of any existing copyright or licence: this is part of that 'did you write it all' bit above. If your work is non-fiction, there may be real quotations, which you will need to credit. You may need to discuss with your publisher how they want quotations credited, and whether there are any quotations they don't feel are covered by 'fair dealing' (remember that? We did it in clause 4). One to look out for here is that copyright in a database exists in the collection of facts, NOT just in the words used to express the facts. So you can't take a whole load of facts from the Guinness Book of Records or any similar publication, reword them, and put them in your book. Obviously you can put a few facts, but if you are compiling a book of random facts you have to be careful you don't take too many from the same source. Keep a note of your sources for all facts of this type and all quotations. You may need to prove later where you took them from, even long after the book is published.

it contains nothing obscene, libellous, defamatory, blasphemous or other unlawful matter: of course, a lot of this is a matter of opinion, and some of it varies by territory. In the UK, a picture of a naked statue is fine, but in Iran or the USA it may be deemed obscene. Don't be rude about living people, even if you thinly disguise them by changing their name. If your treacherous wife/husband/lover/friend/boss can identify themselves in your work, and thinks other people will be able to identify them, you may be faced with a legal suit and a requirement to have the book withdrawn and pulped. Your publisher will not be happy. In this case, where it is a private individual being lampooned or defamed, your publisher is not in a position to anticipate the problem, whereas if you wrote something defamatory about, say, the prime minister, the publisher should really spot it before it goes to print. Even so, don't do it.

Of course, including something blasphemous can backfire badly (you don't want a fatwa like Salman Rushdie), but it can also be immensely profitable if all the publicity raises sales. But I'm not recommending it - you will still be in breach of the contract if you write something blasphemous. If you want to write something that might be considered blasphemous, you may like to check with your publisher which religions they like to cover with this clause. It could be that your chosen target religion is excluded.

all statements contained therein purporting to be facts are true: in a non-fiction book, I always get this changed to add 'true at the time of writingto the best of the author's knowledge'. I've written books that called Pluto a planet - it was at the time. Now that 'fact' is untrue. I don't want to be sued for it. Many other 'facts' change, too. And including 'to the best of the author's knowledge' is good, as it means if you have made an honest mistake you only need to apologise later, not worry about what it will cost you. You might like to argue about what counts as a fact, too. I once argued to have this clause removed totally from a book about alien abduction on the basis that although it was a book about genuine accounts of alien abduction, the people were clearly nutters who had NOT been abducted by aliens and the book was essentially a bunch of lies (and I knew it was).

any recipe or formula contained in the Work is not injurious to the user: you obviously need to test any recipes or formulae, and also make sure nothing can easily go wrong with them that could cause harm. Publishers are very wary, because people are increasingly likely to sue even when it is their own stupidity that has brought them harm. I was not allowed to put the 'recipe' for a made-up magic spell in a book in case stupid people went around blenderising rats and newst and drinking the result, then complaining they weren't suddenly beautiful or able to fly. You will have to put lots of dumb guidelines in about getting an adult to help if you have to use anything sharp (like scissors) or hot (like the oven). I know.... some books aren't worth the aggro any more. This elf and safe tea concern extends to fiction, too. If you show children doing something dangerous in a novel, you might be asked to remove it. If you have someone on a bike in a picture book, they will need to wear a bike helmet in the pictures. Publishers vary in how much they fuss over the representation of unsafe activities. Some are quite OK with it, which is how we have books in which kids rampage around graveyards nailing vampires with stakes.

Well, that's enough for now. I could have said a lot more on the details of this clause, but I'm sure you can work out all the ways in which you might write something defamatory, libellous, blasphemous or potentially injurious to health.

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