Finished editing the magic lesbian plumber story and put it in the mail. Also finished putting the labels and stamps on the mailed copies of Bento #20. Also went to the gym, had lunch with a writer friend, and did some other errands.
I had a humungous list of to-do items when we got back from Denver. It’s now almost two weeks later and I’ve gotten most of the stuff in the “do today” and “do this week” sub-lists done, and part of the “do next week” list. I knew at the time the list was insanely ambitious, so this is reasonable progress. Still much to do before we leave for Farthing Party, a week from today.
One of those to-do list items is to blog about a contract issue. I mentioned this issue at lunch with some newer writers during the Worldcon, and they suggested that I ought to blog it as a public service announcement.
A while ago I got a contract from a market I’d never sold to before. It included the following clause:
Author hereby agrees to indemnify and hold harmless Publisher against any cost, loss, damage, expense and judgment resulting from any breach of Author’s warranties and representations herein, including, without limitation, any settlement payments and attorneys’ fees and expenses, costs and disbursements.
Can you spot the problem?
At first glance this seems harmless (you should pardon the expression) enough. It means that if I, the Author, mess up and violate the warranties set up earlier in the contract — that is, if the story is not original, or is not my own work, or has been published before, or contains slanderous or libelous material — it’s my fault and not the Publisher’s, and I have to pay the damages.
The problem here is that the clause is missing the magic words “action finally sustained.” As written, it enables the Publisher to respond to anyone who comes to them with an unsubstantiated claim like “this story of the Author’s sends out klystron radiation that sterilized my cat!” by saying “okay, here’s a million bucks” and it’s the Author, not the Publisher, who has to pay it (plus attorney’s fees and expenses).
Of course, you don’t expect the Publisher to actually do that. But one of the rules of contracts is that you have to assume that the moment the contract is signed, both you and the Publisher will be hit by a meteor and the Publisher will be replaced by your worst enemy in the world. The purpose of contracts is to protect both sides from anything like that.
So. Adding the magic words “action finally sustained” means that the Publisher can’t just settle any random claim using the Author’s money. It means that you only have to pay out if the claim stands up in court.
I responded to the contract above by suggesting the following new language:
Author hereby agrees to indemnify and hold harmless Publisher against any cost, loss, damage, expense, and judgment in any action finally sustained resulting from any breach of Author’s warranties and representations herein, including, without limitation, attorneys’ fees and expenses, costs and disbursements.
The Publisher accepted this change and thanked me for suggesting the new language.
The moral of this story is to read and understand your contract, look for the magic words “action finally sustained,” and don’t be afraid to negotiate.