Model Trade Book Contract

14.

Representations and Warranties.

    1. Author represents and warrants that:

      • Author owns and has the right to convey all of the rights conveyed herein to Publisher and has the unencumbered right to enter into this Agreement; Author is the sole owner of the copyright in the Work (or of Author's contribution to the Work, as the case may be);

      • the Work or Author's contribution to the Work is original and has not previously been Published in any form, except for:

        • material of others included in the manuscript with Publisher's consent and the written permission of the copyright owner, or the use of which is a fair use under copyright law;

        • material that is in the public domain, provided that if more than 10% of the Work is comprised of public domain material, Publisher agrees to its inclusion; or

        • Any material submitted as part of an academic program, including an MFA or other dissertation, that is made available online on the university system or service such as ProQuest.

      • [to the best of Author's knowledge,] the Work contains nothing that violates any right of privacy, is defamatory, or infringes or otherwise violates any intellectual property or other right of any kind of any person or entity, nor does the Work contain anything that is unlawful or deceptive; and

      • all statements in the Work purporting to be facts are true or are based upon reasonable research for accuracy, and any recipe, formula, diagram, table, recommended treatment, dosage, or instruction contained therein, whether textual or illustrative, and whether intended to be informative or instructional, is based upon reasonable research for accuracy.

    1. Publisher represents and warrants that:

      • Publisher has the full right and ability to enter into this Agreement;

      • that it complies with all applicable laws in all jurisdictions in which it does business; and

      • that no marketing materials produced by it or other material provided by it in connection with the Work infringes any intellectual property right, is defamatory, or otherwise violates any other right of any kind of any person or entity or contain anything that is unlawful or deceptive.

    Commentary

    Publishing contracts are unique from other types of legal agreements in many ways. One of the biggest differences between everyday contracts and publishing contracts is that they are often one-sided with respect to warranties and representations. In most publishing countries, representations and warranties are only made by the author, none by the publisher.

    As an advocacy matter, The Authors Guild believes that publishing contracts should contain mutual representations and warranties. Both parties should guarantee that what they are promising to do under the contract will meet a minimum legal standard, and will not jeopardize the rights of the other party. Such a mutual exchange of representations and warranties would be a step forward in making publishing agreements less one-sided. To this effect, we have included a section in the Model Contract that provides an example for the publisher's representations and warranties. We encourage you to try and include these in your contracts, but don't be alarmed if the publisher disagrees. Note that there is a legally implied duty of "good faith" in every contract, so even if you're unsuccessful in changing your contract to include explicit representations and warranties, you are protected against malfeasance by the implicit good faith requirement.

Commentary

Section 14(a) of the Model Contract contains your guarantee to the publisher that you wrote and/or own the work and that the work does not infringe on anyone else's rights.

 

Almost all publishers' standard contracts contain a representation from the author that the manuscript will be original and not previously published. If any portion of the manuscript has been previously published—such as in blogs or anthologies, or otherwise, you should discuss that with the publisher and be sure to specify and exclude it, as illustrated in 14(a)(ii). Similarly, specify and exclude  public domain material, fair use, and dissertations that have been published previously.

 

Publishers virtually always require a representation that the manuscript does not defame anyone or violate any third-party rights. Unlike most publishers' standard contracts, Section 14(a)(iii) of the Model Contract adds the phrase "to the best of Author's knowledge," which is fairer to authors than forcing them to act as the publisher's insurer against such claims. The Authors Guild has found some publishers willing to accept this change, depending on the type of work and circumstances surrounding the writing of it. If you are concerned about potential claims of libel or invasion of privacy arising out of publication of the work, you can discuss your concerns with your publisher and try to work together to eliminate the risk of a lawsuit. Larger publishers generally have legal counsel who can help assess the risk of legal action and recommend changes to minimize that risk—and, if they are concerned, they will insist on a legal review. Moreover, if the author has reason to be concerned about potential lawsuits, we strongly recommend getting a legal review. The Authors Guild can refer you to attorneys who have experience in vetting manuscripts for libel and other risks.

 

Section 14(b) of the Model Contract contains the publisher's guarantees to you. Many publishers' standard contracts do not include representations and warranties from the publisher—a sign of how one-sided publishing contracts can be. Indeed, publishing agreements are an anomaly in this regard; contracts in most other industries contain reciprocal representations and warranties (i.e., both parties explicitly guarantee the integrity of the subject matter of the contract). The Authors Guild strongly advocates for including publisher representations and warranties. At the bare minimum, publishers should guarantee that they have the right and authority to enter into the contract and fulfill their legal obligations, and affirmatively state that no artwork or copy or other materials provided by the publisher or used in the marketing or promotion of the book will infringe or violate any third-party rights.