Self-Publishing Contracts – The Warranty Clause

When you sign a contract with a self-publishing company, you’ll make certain warranties, also known as representations.

Warranties are promises; guarantees that you make to the other party – in this case, the self-publisher.

Take, for example, the “Warranties” clause in the Aventine Press author Publishing Agreement as it appeared on their website on August 2, 2018.

I’m not an attorney, which means I cannot and do not offer legal advice. I can, however, point to a few items you should be aware of when signing a publishing contract.

The Warranties You Make

The Aventine Press contract says: “The Author represents that he or she is the sole author of the Work and is the owner of the copyright to all of its contents; that he or she has not engaged in plagiarism and that the Work, if fiction, represents no real event or person(s) that could in any way be deemed libelous and that, if nonfiction, does not misstate or omit any fact which would libel any person(s) or result in a person(s) being placed in a false or damaging light; and that the Work does not infringe the copyright, trademark or privacy of any third party; and that he or she is owner of any trademarks and/or trade names associated with the Work; that the Work does not constitute obscenity or hate literature and that the author has the right to enter into this Agreement.”

In simple terms, you are promising that:

  • You, and only you, wrote the book. No one else will pop up later saying she/he worked with you or wrote the entire thing without you. This is important because such a person could demand money and/or ownership of the book.
  • You own all rights to the book. Even if you wrote the book all by yourself, it’s possible that someone else could own some or all of it. Perhaps you promised to share ownership with the person who gave you the initial idea, provided information, corrected the manuscript, or otherwise helped you out. Or maybe you wrote some or all of the book at work, and your employment contract says that your employer owns rights to anything you create at work.
  • You haven’t plagiarized. That is, you haven’t stolen or “borrowed” any material and used it in the book. Even if you accidentally plagiarize – perhaps by neglecting to give credit to the author of a passage you’re reprinting – you can get in trouble. Learn more by reading “What is Plagiarism?” at Plagerism.org.
  • If your book is fiction, no one can point to any character(s) or entity (such as a business), say “That’s me!” and sue because of the way you’ve represented them. The issue here is libel, defined by attorney Lloyd Jassin in his article titled, “When Fiction & Reality Collide” as: “… a false statement of fact ‘of and concerning’ a person that damages their reputation.”
  • If your book is non-fiction, it doesn’t change or leave out facts in such a way that is libelous or makes another person look bad. This speaks for itself.
  • Your book does not infringe upon another copyright. Authors can “step on” someone else’s copyright in many ways, including stealing their work or creating a character that is too similar to an existing character. If, for example, you wrote a spy novel featuring a British secret service agent named “Jim Bond,” you might be sued by the folks who hold the copyright to “James Bond.”
  • Your book does not infringe upon any trademark. The U.S. Patent and Trademark Office defines a trademark as “a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.” For example, the Nike “swoosh” is trademarked, as is Apple’s apple-with-a-bite-taken-out-of-it logo. You can’t use a trademark belonging to anyone else without their permission. (See “Trademark, Patent or Copyright.”)
  • Any trademarks or trade names linked to your book belong to you. If you use a trademark that you assert is yours, perhaps a certain squiggle representing your publishing company, it actually does belong to you.
  • Your book does not invade anyone’s privacy. Revealing private information about a person – for example, that he/she is having an extramarital affair or spends a lot of money on pornography – may lead to a lawsuit.
  • Your book is not obscene or hate literature. The definition of obscene or hate literature can vary from place to place, even country to country, so this is a pretty broad promise.
  • You have the right to enter into a contract. This means that you are an adult, mentally competent, and so on.

Similar Warranty Clauses in Other Self-Publishing Agreements

Here are two such clauses:

  • Dog Ear Publishing Author Contract: “The Author represents and warrants that he or she is the sole author of the Work and is the owner of the copyright to all of its contents; that he or she has not engaged in plagiarism with respect to the Work; that the Work is accurate in all respects, i.e., that if fiction, it represents no real event or person in a way that could be deemed libelous; that if non-fiction, it does not misstate any material fact or omit to state any material fact, the result of which would libel any person or result in a person being placed in a false or damaging light; and that the Work does not infringe upon any statutory or common law right of copyright or privacy of any third party; that he or she is owner of any trademarks and/or trade names associated with the Work; that the Work does not constitute obscenity or hate literature and that the author has the right to enter into this Agreement.”
  • Xulon Press Publishing Services Agreement: “The author guarantees he/she is the sole owner of the Work and has the full authority and right to enter into this agreement. The Author guarantees the Work is original and does not infringe upon any laws or rights, and that the work is not libelous, plagiarized, or in any other way illegal. If any portion of the Work is fictitious, the Author guarantees it does not represent any real event or person in a way that could be deemed libelous. Xulon Press assumes no responsibility for reviewing the editorial content of the Work.”

Warranty clauses are fairly standard in book self-publishing contracts

Be sure you thoroughly understand what they mean before signing on the dotted line.

And remember, I’m not an attorney or offering legal advice. But I can give you this advice: Read every contract very carefully. Read everything else on a self-publisher’s website, as well as any emails or materials they publish or send to you.

Some contracts refer to other documents. If you sign such a contract, you are agreeing to abide by what’s in the other documents as well, so scrutinize everything. Look to see who owns your book, how your royalties will be calculated, and much more.

And be sure to check with your attorney before signing any contract.

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