Tips on Negotiating Representations and Warranties in Author Agreements
When a publisher decides to acquire your book, they are essentially taking a risk that what you are providing them won’t violate the law. As such, their agreements provide that you must make certain assertions (representations) and promises (warranties) that your work won’t violate the law. Below is a sample representations and warranties provision:
“The Author represents and warrants that: (a) s/he is the sole author and proprietor of the Work; (b) s/he has full power to enter into this Agreement; (c) the Work does not infringe any copyright, trademark, or other proprietary right of any third party; (d) the Work does not invade or violate any right of privacy or publicity of any third party; the Work contains no libelous, obscene, or other unlawful matter; (e) the Work is original with the Author and has not previously been published; and (f) there are no rights, licenses, or commitments of any nature granted to a third party that would interfere with the rights granted to the Publisher.”
As you can see, you are representing and warranting assertions made about your work.
1. You’re the sole author of the work (there isn’t someone else that drafted the manuscript or you have a secret collaborator you haven’t mentioned);
2. You can actually enter into the agreement (there’s nothing preventing you from doing this);
3. Your work doesn’t violate any IP or proprietary rights of third parties (copyright, trademark, trade secret, right of publicity, right of privacy, etc.));
4. Your work isn’t libelous, obscene, or unlawful;
5. Your work is original (you didn’t copy it from someone else) and it hasn’t been published;
6. You haven’t entered into any agreements that would prevent the grant of rights in the agreement.
Please note that some publishers may also have you represent and warrant that your work doesn’t contain any injurious formulas, recipes, and instructions. This may especially come into play if your book is a cookbook or a how-to book.
Essentially, the publisher is putting the risk on you that your manuscript won’t cause injury or even death.
Sometimes it’s difficult to know at the time of entering the agreement whether your work isn’t libelous or violates copyright law (after all, you’re not a lawyer). You may want to qualify this by stating that you represent and warrant “to the best of your knowledge.” You may also want to try to narrow the statements when the provision vaguely says that your work doesn’t violate any law whatsoever.
The Representations and Warranties section is important because if your representations and warranties turn out to be wrong, the publisher isn’t required to publish your book, and you may have to return your advance. In addition, the representations and warranties are also connected to the indemnification clause, which kicks in when there is a breach of the representations and warranties clause, so read this section carefully.
The tips mentioned above are not nor intended to be considered legal advice. If you have any questions, contact an attorney.