Showing posts with label defamation. Show all posts
Showing posts with label defamation. Show all posts

Saturday, 22 May 2010

How to read a publishing contract (13)

OK - Sorry for the delay, and thank you all for being patient while I spent a week doing my AS level Italian exams. Now on to the very serious business of indemnity, which means that the publisher holds you wholly responsible for anything that goes wrong.

13. Indemnity

The Author will indemnify and keep the Publishers indemnified against all actions, suits, proceedings, claims, demands, damages and costs (including any legal costs or expenses properly incurred and any compensation costs and disbursements paid by the Publishers on the advice of their legal advisers to compromise or settle any claim) occasioned to the Publishers in consequence of any breach of this warranty or arising out of any substantiated claim alleging that the Work constitutes an infringement of copyright or contains libellous, obscene, defamatory, blasphemous or other unlawful matter. The Publishers reserve the right to insist that the Author alter the text of the Work in such a way as may appear to them appropriate for the purpose of altering or removing any passage which on the advice of the Publishers' legal advisers may be considered objectionable3 or likely to be actionable at law, but any such alteration or removal shall be without prejudice to and shall not affect the Author's liability under his [sic] warranty and indemnity herein contained. If the Author shall refuse to amend or delete to the Publishers' satisfaction any passages in the Work as aforesaid the Publishers may refuse to publish the Work and upon the Publishers' giving notice in writing to the Author of such refusal the Author shall forthwith repay to the Publishers any sums advanced to him as provided in Clause 14 hereof and subject to such repayment this Agreement shall thereupon terminate and all rights granted to the Publishers hereunder shall revert automatically to the Author.

Got that? It's very long..... the longest clause in the contract, in fact. It means that if you breach any of the conditions we've looked at previously about the work being legal (ie no breach of copyright, no blasphemy, libel, lies, dangerous recipes, etc) you will be liable for anything it costs the publisher. So if you include a bit of someone's song, or you slag off your ex-partner and they notice, and the offended party sues the publisher, you will have to pay any fine and the publisher's legal costs and any other expenses. It's a 'we'll have your house, scummy author' clause.

This is a fairly reasonable version of the clause in that it specifies that the costs must arise out of a 'substantiated' claim. This means that if someone claims you have defamed them and you haven't, and the court finds in your favour or the legal teams agree that there was no defamation, you don't have to pay the costs. Some contracts try to sneak in that you pay even if the claim is NOT substantiated. I think we'll look at some unreasonable clauses later, when we've finished this contract. So, in this, clause, check that the word 'substantiated' is included and insist on having it included if it's not there.

Notice in this first sentence that the costs can include the publisher paying compensation without a court settlement if their legal advisers suggest it. This means that if they decide they might lose, or that the case will be expensive, the publisher can settle out of court and charge you even if you did not actually include anything illegal. If you are feeling particularly stroppy, you might like to add that you want your own legal adviser involved in this process, too. The best thing to do is to make sure there is nothing actionable in your book - but you can't guard against mad opportunists like those who have tried to sue JK Rowling for 'copying' their substandard, obscure works. Maybe it's a risk you have to live with, like crossing the road.

The next sentence means that if they tell you to change your book to avoid any possible legal action you have to do so. Fair enough, but the last part is not OK: if you change it in the way they tell you to, you are STILL not let off the indemnity, even though it is now their content that is illegal.

So, suppose you have been wronged by a hideous, duplicitous and manipulative person and decide to write her into a novel as the villain. (Let's assume it's her to avoid putting him/her all the time.) Your publisher thinks she will recognise herself and sue, so insists that you change the name, and perhaps her skin colour, and maybe make her a dentist instead of using her real job. They publish the book and the hideous, duplicitous, manipulative person sues. The publisher can still claim costs from you, even though you did as they asked. Not good. (You might wonder why the HDM person wants to own up to the description, but you'd be surprised - they do!)

Or say you write a non-fiction book in which you say that homeopathy is a load of crap, and the publisher is worried that they will be sued Simon-Singh-style, so they say you have to change it to say there is no credible evidence that homeopathy works. But the world's homeopaths sue anyway - again, you'd still be liable for the costs.

If you don't like the publisher's changes, or if the suggestion that the text might actionable has frightened you off, you can go with the last bit of the clause and refuse to make the changes. The book then won't be published, you repay any money you've had, but you keep your house. Notice that there is not an option for the publisher to make the changes anyway as part of the editorial process. If they made the changes and you had not seen or approved them, I think the liability would then be theirs - which clearly they don't want.

A final point is that this clause means you need to check the edited text and the layouts VERY carefully. If the editor has changed something so that it is actionable and you don't notice you are likely to be liable. Let's say you've written about that HDM person and used a fake name. The editor doesn't like the name for some reason or other and changes it, coincidentally, to the person's real name. Bad news. If you don't spot it and the book goes out like that, and HDM person is anal enough to be reading the books of her enemies, you're in trouble.

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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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