Do you secretly dream of being traditionally published?
When someone you know is offered a contract, do you experience a moment of intense envy? Do you smile, and say ‘congratulations’ while silently screaming ‘why not me’?
Don’t worry, your dirty little secret is safe because….yes, hand-on-heart, I too share your shame. Despite everything I have learned about the traditional publishing world in the last two years, I still haven’t completely quashed the romantic notions I used to hold about the Big Six. I guess it’s like the dream of finding Mr Right and living happily ever after, it never completely dies.
But to quote the Bard, “All that glitters is not gold…”
Every contract we sign, whether it be with Amazon, or one of the New York set, will contain a warranties and indemnities clause, and the language is remarkably similar. In effect, this clause absolves the ‘publisher’ from any blame or financial responsibility if the book breaks any laws. That is, if the poop hits the fan, the author is responsible for the clean-up.
Just small print, you say. How can a book break a law?
Well, let’s look at the case of author Wendy Doniger, professor of religions at the University of Chicago. Doniger, who is signed with Penguin Random House, wrote a book about Hinduism. The book was published in the US and India. A religious group in India objected to the book and initiated a lawsuit, claiming the content violated Section 295A of the Indian Penal Code.
Penguin Random House settled out of court, and withdrew all the books. But who paid for the legal fees, and the costs associated with taking all those books off the shelves and destroying them?
If Penguin Random House insists on the warranties and indemnities clause in the contract, the person responsible will be the author.
Now I have no inside information on whether Doniger was, in fact, forced to pay for the clean-up, but that is what lawyer and blogger, The Passive Guy, seems to be implying in his explanation of the warranties and indemnities clause found in most contracts.
He goes on to suggest that :
“…if legal warranties must be used, the author’s financial obligation for violating any but factual warranties [i.e. that the author owns the copyright to the book] should be capped, not unlimited. If a book violates the laws of India, the author is obligated to return the advance, not pay for legal expenses of US and Indian counsel and the cost of retrieving 20,000 books from 2,000 bookstores in India.”
Aren’t we lucky we’re Indies? Whilst we’re still bound by the same warranties and indemnities, the worst case scenario we face is the withdrawal of our books from Amazon. Devastating yes, end of the world, no.
Another privilege in our favour is that by being Indies, we choose where our books are published. Thus, if we are worried that the content may be controversial in a particular country, we can choose not to publish in that country. Authors bound to a publishing company have no such rights. The publisher decides where to publish, but if they get it wrong, the author cops the flak.
So the next time you start daydreaming about that lucrative publishing contract, think again. Those dollar signs could end up with a minus in front of them.