Philosopher Mark Navin writes:

I just walked away from a book contract with Routledge over an indemnity clause. What do you think is going on with these clauses? 

Routledge recently approached me to write a second edition of my vaccine ethics book (Values and Vaccine Refusal). The contract contained an indemnity clause (Clause 14.2, pasted below) that I wouldn’t sign. As I read it, the clause would give Routledge/T&F/Informa the right to settle third-party claims (including frivolous defamation suits) at my expense and without my consent. Given that the book would engage with public figures who litigate aggressively, and given that corporations often settle even bogus claims rather than bear the cost of defending them, it seemed imprudent to sign such a contract.

The frustrating part is that Routledge agreed, more than a decade ago, to strike similar passages from my contract for the first edition. Relatedly, when I wrote an OUP book a few years ago, that publisher agreed to add an amendment to the contract to confirm that I’d be covered under their insurance policy and wouldn’t be personally liable for payments to claimants.

 
This time, Routledge would not budge. 

To be clear: the editor, Andy Beck, was gracious and I’m confident he pushed for me as hard as he could. 

Do you think publishers have become less willing to negotiate these clauses? 

I’d be interested to hear your thoughts, including whether you’re hearing similar things from other academics. Please feel free to use any of this material (including my name) for a blog post if you think others would benefit from your discussion of this issue.

Here’s the full text of the indemnity paragraph from the Routledge contract:


14.2. You will indemnify and hold harmless the Publisher against any loss, damages, injury, costs and expenses (including any legal and professional costs or expenses, and any financial remedies paid by the Publisher) arising from a third party claim relating to any alleged facts or circumstances which, if true, would constitute a breach of your warranties or representations. You shall promptly inform the Publisher of any claim, demand, or suit made against you in connection with the Work. You shall make no response to or settlement or admission in relation to any such claim without the consent of the Publisher. The Publisher shall retain the right to defend any such claim or shall, if the Publisher deems appropriate, make a settlement on any such claim, at the Publisher’s own discretion, and you shall co-operate fully in defense of any such claim. This indemnity does not apply to (i) any indirect losses suffered by the Publisher; or (ii) any liability for claims caused solely by the acts or omissions of the Publisher.

So I have not had experience with an indemnification clause like this, and I think Professor Navin was right not to accept such a provision for the reasons he notes. The only change I have requested on these indemnification clauses is that my liability applies only to successful claims. But I would never agree to a provision that the publisher can settle a claim, at its discretion, when I’m on the hook for the costs! That’s crazy.

I should say that book publishing contracts have gotten worse in recent years–obviously in-house counsel are adding more provisions that are designed to protect the publisher at the expense of the author. I assume they count on most academics not reading these contracts, but with my lawyer’s hat on, I do read them and frequently ask for changes, and that has not been a problem. But I have never before seen an indemnification provision like this one.

Per Professor Navin’s suggestion, I’d be curious to hear what the experience of other academics has been with book contracts in recent years, and indemnification clauses in particular.