Insight by Attorney Mitch Tuchman
In the 1970 comedy Brand X Taylor Mead, playing the president, is asked by a journalist, “Sir, what will you do when the inevitable happens?” “I’m an optimist,” he responds, “I don’t think the inevitable will happen.” But inevitably it does.
In publishing and other agreements each party seeks to shift liability to the other should inevitable, foreseeable, or even merely hypothetical adverse events occur. The finger-pointing vehicle is a section of the publishing agreement called representations and warranties.
Representations are statements of fact each party makes to induce the other to enter into the agreement. They represent the situation prior to signing. Warranties are assurances each party makes to stand behind the representations during the term of the agreement. Reps look back; warranties look forward.
With an eye to protecting its own interests in the context of a third-party claim of infringement, a publisher will insist that an author represent that he or she is the sole author (or joint author, as the case may be) of the work; the work is original, not copied from any preexisting work; the work does not violate any third-party right; no payment is due to any nonparty on account of the publisher’s publication of the work; and so forth. A publisher’s insistence on an author’s carefully tailored representations is reasonable.
Be wary, however, if the publisher’s initial draft agreement includes a representation regarding the privacy rights of third parties. Because of the way invasion of privacy is adjudicated in state courts, an author’s representation regarding privacy rights should not be absolute but carry a knowledge qualifier: “to the best of the author’s reasonable knowledge the work does not violate the privacy of any third party.”
This is the 6th article in a series intended to introduce readers to publishing agreements. Other articles in this series include:
New to Publishing Agreements? What You Need to Know
How Long Should a Book Publishing Agreement Endure
Understanding Book Publishing Agreements: Territory
Book Publishing Agreements: Copyright Ownership & Licenses
World Rights in Book Publishing Agreements