Whose Liability Is It Anyway?

We have served at various times as coeditors, as editors-in-chief, and as authors of numerous books, book chapters, and peer-reviewed articles for several decades. The income from all these activities combined will not contribute significantly to either of our retirements and, in fact, probably not even a good vacation. Most editors and authors do this work primarily because they are academics and teachers, dedicated to education and sharing their knowledge. We are motivated by this goal rather than by financial gain; otherwise we would be in a different business.

Over the years we have dealt with numerous publishers and signed many different forms of author contracts. In recent years we have encountered a clause in some of these documents that has prompted us to write this editorial. Somewhere along the way a lawyer with no evident concept of academia added a paragraph that puts the author at great risk for certain types of legal action taken against the publisher. The contracts ask for the usual attestations that the material used is original and that no other person has a proprietary claim on it. It is certainly reasonable for a publisher to ask that authors certify the originality of their work. The problem comes when the author is asked not only to certify their article’s originality but also to indemnify the publisher against claims to the contrary.

A typical clause may read as follows: “The author warrants that the work is original except for such excerpts from copyrighted works as may be included with the permission of the copyright holder and author thereof, has not heretofore been published in whole or in part, contains no libelous statements, and does not infringe on any copyright, trademark, patent, statutory right, or proprietary right of others.” This is a reasonable statement for the author to be asked to sign. Our concern is the increasing appearance of a clause similar to the following: “The author will indemnify the publisher against any costs, expenses, or damages for which the Publisher may become liable as a result of any breach of this warranty.” This liability exists once the author warrants the originality of his/her work, but now the financial risk is greatly increased.

In the litigious society in which we live, the possibility of such a suit on a frivolous basis is not inconceivable by any means. Yet, it would be ludicrous to even consider matching the assets of the average academic against those of the average publisher. Our assets together could probably be added to the net worth of a publisher without anyone even noticing that there was an increase in value. Even a completely unjustified claim could bankrupt any of us easily. The indemnification puts us greatly at the mercy of the publisher in determining if the warranty has been breached. If the publisher makes this claim the author would need to spend a great deal of money on the legal defense required.

When an article or a chapter is written on some research or medical subject, the publisher usually owns the copyright. Subsequently you cannot even publish your own material without their permission. The bulk of the profits go to the publisher except (in some cases) for a modest royalty, which rarely approaches the expenses of preparing the work. So we are asked to share the expense disproportionately, gain little compensation, and share the legal risk.

These clauses could be construed as legal “boilerplate” in a contract that some of you might run into if you are planning or are writing something to be published. We urge you to look out for such language in the contract. Our practice is to cross out these offending clauses, initial them, and move on. It is interesting that we have never had a publisher refuse to deal with us. It is sort of like the old expression, “If you don’t ask, you won’t get it.” The publishers certainly give it a try; if you refuse them, you still get to publish your work and an unreasonable legal risk is avoided.