Words of Warning for Historians of Sexuality: Indemnity Clauses and Publishing Contracts

Gillian Frank

What financial risks should historians of sexuality take to publish their research? In recent years, academic presses have increasingly included indemnity clauses in their author contracts. Because we are under tremendous pressure to publish, and far too many of us do not carefully read and understand the implications of our contracts, indemnity clauses are often overlooked.

However, indemnity clauses should be carefully scrutinized because they have potentially significant financial consequences for authors, especially those working on politically charged topics such as the history of sexuality.

An indemnification clause defines who will be financially responsible in the event of a lawsuit from a third party. Should they get sued over an author’s work, publishers include these clauses in book contracts in order to obligate the author to pay back any legal fees and damages incurred. While the press may view indemnity clauses as necessary to make authors “stand behind their work,” such clauses also release the press from any obligation to defend its authors should a lawsuit — even a baseless or a nuisance lawsuit — arise. In other words, signing a contract with an indemnity clause may leave authors with the financial burden of a lawsuit and very little control over their own defense.

Three examples of indemnity clauses used by presses with global presences showcase the breadth and potential impact of these provisions:

1. You also warrant that the material does not infringe on or violate any copyright, right of privacy, or any other proprietary or personal rights, and does not contain any matter libelous or otherwise unlawful. You agree to indemnify and hold [press name redacted], our assignees, and our affiliates and licensees harmless from all liability arising out of any actual or alleged breach of these warranties.

2. The Contributor agrees to indemnify and hold the Publisher and its assignees and licensees harmless against any claims, deeds, suits, actions, proceedings, recovery, cost or expense of any nature whatsoever arising from any breach of the warranties and representations herein contained. It is understood that the warranties, representations, and indemnifications contained herein will survive the termination of this agreement. The Publisher reserves the right, having first requested the Contributor to do so, to alter the Contribution as may appear to it appropriate for the purpose of modifying or removing any passage which may be considered objectionable or likely to be actionable at law, but any such alteration or removal will not affect the Contributor’s liability under this indemnity in respect of Contribution not amended.

3. The Author and the Author’s legal representative will indemnify, defend and hold harmless the Publisher, its subsidiaries and affiliates, officers, directors, employees, partners, associates, agents and representatives from all costs, losses, expenses, settlements, liabilities or damages arising out of, or for the purpose of resolving, or avoiding, any claim, suit, proceeding, or demand (claim) arising from the WORK made against the Publisher which, if sustained, would constitute a breach of warranties and representations set out in paragraph 3 [that the work is “innocent” and not “libelous or injurious,” does not infringe any copyright, etc.]. The Publisher shall have the right to defend any such claim with counsel of Publisher’s selection and the Author shall cooperate in such defense. The Publisher may, after consultation with the Author, settle any such claim made against the Publisher on terms the Publisher deems advisable and the Author will be liable for any amount the Publisher agrees to pay in settlement of any such claim. In the event of such claim, the Publisher may withhold any sums dues to the Author under this or any other Agreement between the Author and the Publisher. If the Publisher does so, it shall notify the Author without delay. The warranties and indemnities set forth shall survive the termination of this Agreement.

To understand what these clauses mean and how they might impact scholars, I spoke with an attorney, K.J., who specializes in intellectual property law in Canada and the United States. She explained that publishers include indemnity clauses in their contracts with authors, “to make sure that they are not on the hook for the costs of litigation. Litigation is very expensive and these clauses are in there to protect the publisher.” She elaborated:

If someone sues the publishers — even if they don’t have a strong basis for the lawsuit — the publisher can choose to settle because it’s cheaper than litigating. Phrases like “indemnify and hold harmless” mean that even if it’s a nuisance suit, the author would then be responsible for paying the settlement amount and the publisher’s legal fees. Depending on the language of the clause, the press can settle regardless of whether the author had any say in the negotiations. Even if a contract indicates that the press will consult with the an author, as in example number 3 above, they are under no obligation to heed the author’s wishes or obtain the author’s consent. In other words, the press may or may not be obligated to consult you or get your approval depending on the language of the indemnification clause.

While one could read the above examples as protecting publishers from cases involving plagiarism or copyright infringement (the “warrantees”), K.J. noted that should another party believe that your published work derives from their own, “they can take action against a publisher because they may believe the publisher has deep pockets.” She explained:

Let’s say someone sues the publisher for copyright infringement because they had submitted a book proposal to the publisher prior to your book being published and both projects covered similar themes. You may have never been aware of the other project. Nevertheless, in the event of a lawsuit, the publisher will have to retain counsel and may choose to litigate or settle the case. Either way, those costs can be passed on to you.

Such clauses have implications for scholars within and beyond the United States. Many academics choose to publish with presses based in the United States even as a number of publishers are multinational corporations. For example, in 1996 Holocaust denier David Irving sued Penguin Books and U.S. based historian Deborah Lipstadt for libel in England. He objected to — among other things — Lipstadt’s characterization of him as a dangerous Holocaust denier who distorted historical evidence. Lipstadt prevailed in the end, but the lawsuit resulted in a costly litigation. If Lipstadt had an indemnification clause in her contract, she could have been responsible for her own legal fees, as well as the publisher’s.

While legal actions against presses and invocations of indemnity clauses have been rare, they nonetheless have potential consequences for historians of sexuality. In the United States, for example, history curricula are political and the content of what is taught in classrooms is the subject of fierce legislative debates. One can readily imagine an anti-gay psychologist that supports conversion therapy viewing an LGBT historian’s depiction of his practice as “injurious” or “libelous.” Likewise, an anti-pornography activist might find “injurious” an analysis that characterizes him as exhibiting an unhealthy interest in smut and appealing to the prurient interests of his supporters. As politically motivated individuals and groups attempt to shape what is taught in classrooms and circulated to wider audiences, recourse to the courtrooms is entirely possible. In this vein, K.J. cautions authors to “read what’s in the indemnification clause especially if it’s broad enough to include slander action or libel action where anyone can be offended based on what you wrote.”

So how should authors respond to contracts with indemnification clauses?

K.J. strongly suggests: “If it’s possible to have a lawyer review your contract, that’s always best. They can give you a sense of what your exposure is and help you negotiate. My advice generally is to ask the press to take them out.” This solution does not necessarily protect the author from being sued. But it has the benefit of unburdening the author of the publisher’s legal bills, allowing an author to choose their own counsel, and having a greater voice in any litigation.

An article over at the journalism website Poynter presents another solution. Barry Yeoman, a freelance investigative reporter, flips the script by asking the publisher to pay for counsel. He requests publishers to replace their standard indemnity clauses with the following: “The Writer guarantees that the Article will not contain material that is consciously libelous or defamatory. In return, the Publisher agrees to provide and pay for counsel to defend the Writer in any litigation arising as a result of the Article.”

Negotiating with a press over indemnification clauses may be intimidating, especially for untenured faculty for whom the stakes are high. But before an author signs on the dotted line, they should give serious consideration to the financial exposure they face when publishing their scholarship. Asking presses for reciprocity — as Yeoman does — can help mitigate financial risks to both the author and the publisher.

Gillian Frank is a Managing Editor of Notches: (re)marks on the History of Sexuality. He is a Visiting Fellow at Center for the Study of Religion at Princeton University. Frank’s research focuses on the intersections of sexuality, race and religion in the twentieth-century United States. He is currently working on a book manuscript entitled Making Choice Sacred: Liberal Religion and Reproductive Politics in the United States Before Roe v Wade. Gillian tweets from @1gillianfrank1.

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