Writers and Editors

August 15, 2014 10:13 AM EDT

Thank you. I can currently find very little work anymore that doesn't come with these dangerous clauses. The publisher's attorneys advise against any change the author suggests unless the writer gets another attorney involved.

- Brenda

November 02, 2014 3:58 AM EST

Thank you, Pat.Instead of "provided that such liability is finally established by a court of competent jurisdiction, and that such judgment is sustained after all appeals have been exhausted", "provided that such liability is finally sustained" is all that is needed.

- Michael S. Altus, PhD, ELS

March 18, 2015 8:07 AM EDT

Thanks, Pat. I too am seeing more and more of this language in contracts, written in increasingly broader terms. Your post is the clearest and most useful resource I've found for dealing with this issue. Much appreciated.

- Antoine

March 19, 2015 8:47 PM EDT

Pat, it might be interesting to explore the ramifications of indemnification on the individual's insurance.I would image that an insurance policy would not pay claims in situations where you've signed away in advance to cover third-party (a publisher's) expenses.Thanks for your thoughtful writing on this topic. It is a big help in these murky and shark-infested waters.

- Antoine

December 18, 2015 8:44 AM EST

See also this post in the Authors Guild's Fair Contract Initiative: Stop Forcing Authors to Take Unlimited Financial Risks (AG, 12-18-15)One comment there seconds what Michael Altus recommends, as a limiting phrase.

- Pat McNees

June 18, 2016 8:14 AM EDT

In The Business of Editing: Noncompetition Agreements (An American Editor, 1-29-14), Rich Adin complains of packagers asking for one-sided, onerous noncompetition clauses. After explaining all the reasons for not signing a contract containing such a clause, he ends, "The point is that you need to read noncompetition agreements very carefully. You need to be sure that its scope is very narrow and that all of the entities you are not to approach are identified. Even more importantly, you need to negotiate compensation for the rights you are giving up. Finally, I would think about whether signing the agreement would change your status from freelancer to employee in the eyes of the IRS. Because I am averse to signing such agreements, I make it clear that I plan to send the agreement to the IRS for review. So far, that has been enough to have the agreement disappear without my signature."

- Pat McNees

July 28, 2016 1:16 PM EDT

Katie writes: "I recently got accepted as an independent contractor on a selective freelance site. I just received their contract, and it includes everything you warn against. My question is whether you believe the information in this article would still apply? Technically, the website connects other businesses with freelancers, so the setup is different than a book or magazine publisher. Any advice on how to handle the situation? Or should I proceed with what you've laid out above, regardless of the different situation?Thank you so much for this information! My spidey senses perked up as I read through the contract, and this (as well as another article I found on this site) helped a lot."Pat responds: I am no lawyer, but if anything people are offering even more draconian clauses now, and based on the logic of the thing, I would strike out any clauses that put you at financial risk. It's not worth signing a bad clause just to get the gig, in my view.

- Katie

August 12, 2016 6:35 AM EDT

See Legal Liability and the Copyeditor (Adrienne Montgomerie, Copyediting, 8-8-16). Good succinct statement about why a copyeditor should strike an indemnity clause from a contract with her client: "The copyeditor does not have the authority to enforce changes to address plagiarism or using content without permission (two related but not identical issues). Neither does the copyeditor have the last look at material before it is published." "Proofreaders can’t be assigned the responsibility because they are not asked to look at content at that level."There is also a LEGAL LIMITS OF LIABILITY reason: "In some jurisdictions (and the jurisdictions vary wildly), there is also a legal principle along the lines that the powerless little guy can’t be assigned responsibility in an agreement. That means both that the court won’t agree that the copyeditor accepted legal liability if that person was reliant on Big Corp for a living (you might think of it as being dismissed because it was agreed to under duress), nor will they easily agree that the least able to pay in a settlement is the one responsible for damages."

- PM

January 19, 2020 3:32 PM EST

Wording other authors had added: "and, Author’s liability hereunder is limited to the total sums payable to Author under this Agreement."
And
"when determined by a court of final jurisdiction." Then the costs only apply after someone had actually gone to court and exhausted all legal remedies.

- Pat McNees