By Kevin Smith

When I complained, in a blog post written several weeks ago, about the contract I had signed, and regretted, for a book to be published by the American Library Association, I really did not expect the kind of reaction I got.  Quite a few readers made comments about the unequal position of authors in publishing negotiations, and especially about the need for the library world to do a better job of modeling good behavior in this area; that was to be expected.  A few people took me to task for agreeing to a contract I disliked so much, which was no more than I deserved.  But I truly was surprised by the number of folks from the ALA, including current ALA president Jim Neal, who reach out to me and expressed a determination to fix the problem I had described.

Readers will recall that my principal objection to the contract was an indemnification clause that, in my opinion, made me and my co-authors responsible for problems that we could not control.  In short, the original contract allocated too much risk to us and tried to protect the ALA from the potential consequences of its own actions by shifting those consequences to us as authors.  Although other parts of the contract were negotiable, and I felt good about some of the things we had accomplished in discussions about it, I was told that this indemnification clause was not negotiable.

A couple of weeks after I wrote that post, I had a phone conversation with Mary Mackay, the new Director of Publications for ALA.  She told me three things I thought were significant.  First, that revising the publication contract used by ALA was on her “to do” list from the time she started.  Second, that all aspects of their agreements are negotiable, and I should not have been told otherwise.  Third, that I would get a new, revised contract.

Last week I received the revised contract, which my co-authors and I plan to sign, which will replace our current agreement. The difference in the indemnification clause is like night and day, and I want to present the clause contained in this new agreement as a model for appropriate risk allocation in such contracts.

The new clause is three short paragraphs.  In the first, we authors warrant that we have the authority to enter into the agreement, that the work is original, that it has not been previously published, that it does not infringe anyone else’s copyright and that it is not libelous, obscene or defamatory.  We also promise that it does not violate anyone’s right to privacy and “is not otherwise unlawful.” In the next paragraph, we promise to detail any materials incorporated in the work for which we are not the rights holders, and to provide documentation of any necessary permissions.  Then comes the third paragraph, where the big difference from our previous agreement is most notable:

Author shall indeminify and hold harmless against claims, liability, loss or expense (including reasonable attorneys’ fees) arising from a breach of the above warranties. (emphasis added)

In short, we agree to indemnify the publisher from liability for things we do, and for breaking promises we make.  Unlike the first version, we do not indemnify for any liability “arising from publication of the work.”  This is, to me, a huge and significant difference, and I believe that this second contract does what contracts are supposed to do; it apportions risk fairly between the parties.

I take three lessons away from this experience.

First, it is important to negotiate publishing agreements.  Most publishers will negotiate, and when you are told that something is non-negotiable, it is still sometimes important to push back on that claim.

Second, the library community should, and sometimes will, take the lead in producing fair agreements for authors.  This is a moving target, and we should continue to push our own profession to live up to the values we articulate.

Third, the American Library Association did something here that is all too rare; they admitted a mistake and took steps to correct it.  For that, especially, I am grateful to them.

Kevin Smith

Kevin Smith is a librarian, a lawyer focusing on copyright issues, a scholarly communications advocate, and the Dean of Libraries at the University of Kansas.

Comments (5)

  1. Great resolution. Thanks for bringing this to ALAs attention and for sharing your experience with all of us.

  2. Will ALA reach out to all authors now or only to those with “clout?” That will be one measure of a sincere wish to make the contract equitable to all.

    1. We are certainly committed to working equally with all authors. In my response to Kevin’s post, I included that once the author contract has been fully revised (we’re aiming for late winter) and made as consistent as possible across ALA divisions and other units that issue related contracts, ALA Editions/ Neal-Schuman will communicate with authors of forthcoming books. In the meantime, anyone who has a specific concern should certainly raise it with their editor. Thanks.

  3. Thanks again, Kevin, for your encouraging words, and for raising the issue and giving us the opportunity to respond. Chris Murphy, ALA Editions/Neal-Schuman Publisher, is a strong champion of the need to revise the author contracts and is in charge of the process. Once the author contract has been fully revised (we’re aiming for late winter) and made as consistent as possible across ALA divisions and other units that issue related contracts, ALA Editions/Neal-Schuman will communicate with authors of forthcoming books. Thanks, everyone, for your feedback and thoughts.

  4. I appreciate the guidance on contract construction, about which I know little. Certainly the new contract seems much better, but I still on wonder if it really “apportion risk fairly between the parties”? I assume that ALA has insurance to cover errors in publication and you don’t. You are still therefore more at risk. Shouldn’t it be enough to simply provide a warranty, but stay silent on indemnification? ALA could still come after you if your violation of the warranty caused it harm, but the issue of how much harm and who is responsible would seem to be more open for discussion.

Leave a Reply

Your email address will not be published. Required fields are marked *