Guest Post by Ellen Ryan: Fighting Against Indemnification Clauses
Note from Jennifer: Earlier this week, Kim Kavin, chair of the ASJA Conflicts & Contracts Commitee, gave us a great introduction on Indemnification Clauses. Today we have a guest post from Ellen Ryan sharing her real world experience of getting companies to modify Indemnification Clauses to more freelance friendly terms. I met Ellen through ASJA and have found her to be very knowledgeable on contracts so I asked her to share her her knowledge with us today. Based outside Washington, DC, Ellen Ryan specializes in profiles, case studies, career change, and education. You can visit her at her website or on Twitter at @ERyanWriter.
Do you blindly sign contracts for content marketing work or articles? Don’t. Where we once were most concerned about all rights versus first North American serial rights, now the bigger danger seems to be in demands about legal liability, insurance, confidentiality, and so on.
It’s not an idle threat. Dolia Estavez wrote a piece for Forbes called “10 Most Corrupt Mexicans of 2013.” Sure enough, one of them sued for defamation. Though a lawsuit might be the least of her worries, the Poynter Institute says that Forbes told the writer “she was on her own, invoking a provision of its standard freelance contract stating that web writers are ‘responsible for any legal claims arising’ from their work.”
And no, you don’t have to write about murderers or druglords to be concerned. With nearly everything we write ending up on the Net, our potential liability is worldwide. Maybe a religious leader, foreign or domestic, doesn’t like what you innocently wrote. Maybe something not actionable in the United States is actionable under the United Kingdom’s tougher libel laws. Maybe you quoted a talkative source who was—unbeknownst to you—bound by a confidentiality clause. (That one makes me shudder.)
Think truth is the best defense? Even a nonsense lawsuit can keep you in court for months or years and drain your savings. Besides, those clauses are wildly inequitable: They usually state that the publisher or company gets all rights to your work, but you indemnify it against any legal action anywhere at any time. I don’t like playing with loaded dice.
So even the odds. You are half of this contract; you can and should fight indemnity clauses. Here’s what’s worked for me:
- Read carefully. Contracts I’ve signed include such lines as “Contributor agrees to use reasonable care to ensure that all facts and statements in the Work are true and that the Work does not infringe upon any copyright, right of privacy, proprietary right, right of publicity or any other right of a third party” (Professional Media Group) and “You … will not knowingly plagiarize the work of another or infringe another’s copyright …” (USNews). AARP uses the phrase “to the best of Writer’s knowledge.”
- Explain the issue. Editors and lawyers are people, too. I explain that I’m happy to promise what I know, such as that the work is original and doesn’t plagiarize and that I’ll follow the assignment or outline. But no writer can promise what we can’t know, such as that other people didn’t lie, that the work violates no laws, that no one will take offense, and that no one will sue or threaten to. Reasonable people get that.
- Propose alternatives. McMurry/TMG (now Manifest) had a contract that read, “Assignor represents and warrants that … the Work does not violate or infringe any copyright or any other proprietary right; the Work contains no matter that is libelous or otherwise unlawful ….” The company agreed to change “represents and warrants” to “makes commercially reasonable efforts.” Connect Corporate and some trade associations made the same change. The Washington Post’s lawyers preferred “to the best of the freelancer’s knowledge.” We signed that amended contract in 2015 and again this fall.
This summer, some companies pushed back. Inbound Logistics, Adelphi University and Mashup Studios all refused to discuss such amendments.
So I walked. Fellow writers say Skyword won’t budge on its liability clause, so I won’t go there until it does. The likelihood of something happening may be low, but the consequences are so bad that I’m not willing to take that chance.
Don’t we want to work with the more rational folks, anyway? Let’s support the people and companies that support us—and avoid the dangers of unreasonable legal liability.
Share your experiences with indemnification clauses? Have you walked from a client? How have you gotten other clients to change their contracts?
Such important information, Ellen. I’ve walked away from a number of contracts because the indemnification clauses were frightening. One editor told me, ‘Look, none of our writers have ever been sued–I’m sure it’s fine. It’s just legalese that the lawyers require.’ My response, ‘You may be willing to assume those risks, but I’m not. There’s a first time for everything.’
I’ve found that there are plenty of good clients out there who understand and respect my concerns and are willing to work with me. Like you, I’m perfectly comfortable standing behind my work, but I’m not willing to assume responsibility for the actions of others whose agendas, commitments and loyalties I do not know.
Absolutely.
Just because “nobody has been sued” doesn’t mean everything will be fine when you sign on the dotted line.
I can drive around for five years in a car with no seat belt or airbag without slamming into a wall. That doesn’t mean I should accept the risk because “oh, nobody in this car has ever gotten had a collision.”
It sounds to me that it’s larger publishers wanting to pass the legal buck to freelancers, who are largely ‘Mom & Pop’ organizations and will accept the risk because they don’t know any better.
The reality is that the risk of getting sued is a cost of doing business. Anyone that decides to take that risk must do it with both eyes open. That includes freelancers, and that includes the publishers.
I want to avoid that kind of liability, so I’m going to keep wearing my seat belt thank-you-very-much
Thanks for taking on the very important topic of indemnification clauses. One fact is clear: writers have to sit down and =slowly= read every part of the contract before signing. I’ve seen indemnification clauses in all shapes, sizes and wordings. Some are even presented in fragments, throughout the document.
And there’s no telling what type of client or publication or agency is more likely to have onerous versions than others. I point out which sentences/sections are unreasonable, explain why they are unreasonable and send back wording that I would accept. You can do this in a friendly way, assuming the best but being prepared for the worst. I have negotiated wording (going back-and-forth several times) a few times, but generally have found that they either see that what you’re suggesting is reasonable and accept the changed wording, or they refuse, usually citing some absolute rule handed down by their legal department.
Writers need to remember that we are our own legal departments. We need to look out for our interests as fiercely as the clients’ legal departments look out for theirs.
It’s hard to refuse to sign a contract when you really want the work, or really need the money, or both. But no one on the other side is looking out for you. And they certainly won’t suddenly find a conscience if a lawsuit is filed.
Your last sentence is so important, Robin. I’ve never heard of clauses in fragments throughout the documents (sounds awful) — how did you handle that, and please tell us what companies do this!
I write mostly for nonprofits, associations, institutions, hospitals, agencies, websites and publications, not for companies per se. But the range of contracts from those entities is wide.
This is why it’s so important to read the full contract or letter of agreement or whatever you get, even if you’ve done work for the client before. I make a copy and highlight every phrase that has a potential problem–that’s how I discovered some were inserting indemnifications at various points in the document. I then draft my suggestions for change and send them back to the editor/director/supervisor/contact person. Sometimes I ask for things to be removed without any addition. Other times, I offer changed or added wording (“to the best of the writer’s knowledge…”, etc.).
I also explain why I’m requesting the changes, for example: I can’t possibly make a blanket assertion about the content being original, not libelous, etc. if other people will be editing it and making changes after I submit it.
I recently was approached by a health publication connected to a national disease organization and I wanted the work because I thought it could be a good on-going client. Well, the assignment was for me to take a large article they had previously published on a subject I knew little about and rework it, update it, and turn it into something new based on the old. They refused to allow me to insert any “to the best of the writer’s knowledge…” language, which meant I would be indemnifying someone else’s previous work. That’s not a usual type of assignment, but they said their legal department would not allow any changes at all to the contract–so even if it had been more conventional work, I would not have signed the contract.
This has lost me work more than a handful of times over the years. In the case of that organization, it followed numerous emails between me and the editor, refining the scope and direction of the work, what they really were looking for, what sources would be acceptable, etc. In other words, I had already invested time and thought into the project but had to walk away.
Thanks for the valuable information from all concerned. Has anyone taken out insurance to protect them against a potential lawsuit?
Hi Mickey, It has become harder and harder for writers covering serious topics to get insurance to cover these indemnity clauses–precisely because the money on the line can be so massive. The insurance companies don’t want to take on the unlimited risk any more than the writers do. In some cases, insurers have refused to offer policies to writers whose contracts with publishers include indemnity clauses. (This happened to me, actually, on a work of investigative journalism. The Author’s Guild has had a number of other writers–of fiction and nonfiction alike–reporting the same problem getting insurance, for the same reason.)