When engaging in scholarly writing, publishers may demand indemnification for the work that you have created. If you read other articles on this site, you’ll see that indemnification creates a significant risk to your financial well-being. Indemnifying publishers for book chapters or other scholarly articles you have created is no exception to this rule. Here’s a story of how a publisher’s demand for indemnification and its misstatements regarding the implication of indemnification caused me to withdraw from submission a book chapter I had written.
A book publisher demands indemnification in a contributor agreement
After being asked to write a chapter on EMTALA for a Wolters Kluwer book on Manual of Obstetric Emergencies, I spent several weeks organizing, researching, and creating a manuscript.
After finalizing the manuscript, Wolters Kluwer presented me with a “contributor’s agreement.” In pertinent part, this agreement stated:
With respect to the Contribution, Contributor hereby represents and warrants that the Contribution: (i) is an original work of authorship by the Contributor; (ii) does not infringe or violate any personal or proprietary right of any third party, including any common law or statutory copyright; (iii) does not contain any material that is libelous, obscene or defamatory, or that violates or invades any right of privacy or publicity; and (iv) does not contain any formula or instruction that is injurious to a person or property or otherwise harmful.
To the best of my knowledge, these statements are true. However, then came worse language. The agreement also stated:
Contributor shall indemnify and hold harmless Publisher and licensees, affiliates, successors and assigns, from all costs, expenses (including attorney’s fees and expenses), losses, liabilities, damages, and settlements arising out of or in connection with any claim or suit based on allegations that, if true, would constitute a breach of any one or more of the above representation and warranties or a Publisher’s efforts to resolve or avoid such claim.
In other words, if any person reading the chapter I wrote “claimed” that what I had written was defamatory, had violated copyrights, invaded their right of privacy, or that what I had written had harmed them in any way, I would have to pay out of my pocket to compensate Wolters Kluwer for any and all expenses (including attorneys’ fees) that it incurred in investigating, resolving, or avoiding those claims.
Why is indemnification of a publisher in a contributor agreement concerning?
Suppose that a physician or a hospital acts upon what was published in the chapter. Perhaps a physician discharges a pregnant patient who had been having contractions but those contractions stopped – or maybe the pregnant patient WAS having contractions, but those contractions were deemed to be “false labor.” Now suppose the patient later suffers a miscarriage and files an EMTALA claim because she wasn’t “stabilized” according to the language in the Act. If CMS cited the hospital and/or physician for an EMTALA violation (and CMS is notoriously irrational in citing hospitals for EMTALA violations) and the hospital/physician in turn sue Wolters Kluwer based on an “injury” or “harm,” the author of any language the hospital/physician relied upon would be responsible not only for paying all of Wolters Kluwer’s expenses in investigating or defending the claim, but also any settlements Wolters Kluwer chose to make.
By signing the agreement, Wolters Kluwer makes authors personally responsible for any claims made against the publisher based on the author’s work – even if those claims are frivolous.
That wasn’t a risk I was willing to take. When I objected to the indemnification clause, I received a message from a senior editor at Wolters Kluwer:
[Indemnification] is standard in all of professional publishing that we have authors and editors sign a contract with this verbiage. It is stating that you are submitting content that isn’t plagiarized in any manner. Is there something in particular you are objecting to in the language?
My response:
I’ve written several book chapters and this is the first one that required indemnification.
The problem is that the agreement *isn’t* just stating that I haven’t plagiarized. If you want a statement that the chapter isn’t plagiarized, I have no problem with that. Instead, the agreement is stating that the chapter (i) is an original work of authorship by the Contributor; (ii) does not infringe or violate any personal or proprietary right of any third party, including any common law or statutory copyright; (iii) does not contain any material that is libelous, obscene or defamatory, or that violates or invades any right of privacy or publicity; and (iv) does not contain any formula or instruction that is injurious to a person or property or otherwise harmful.
To the best of my knowledge, each of these statements is true. However, if someone in bad faith alleges that my chapter is libelous, defamatory, violates a personal property right or a statutory copyright, or is injurious to a person because they relied upon it in treating a patient, then the indemnification portion of the agreement also requires that I *personally* pay out of my pocket all of Wolters Kluwer’s expenses in defending a bad faith lawsuit or any other expenses involved in responding to the issues raised. Indemnification is an uninsurable risk. I’m not willing to put myself and my family at significant financial risk under such circumstances.
When dealing with medical contracts that try to include indemnification clauses, I frequently hear that “everyone else signs it.” When I do lectures on medical law, I take a poll about indemnification and uniformly less than 1% of audience members understand indemnification. Once educated on on the pitfalls of indemnification, uniformly 100% of audience members would refuse to sign an indemnification agreement. I’m betting that if you forwarded this e-mail to all of the other authors in this book, you’d get a similar response.
If you’re going to tell me that no one has ever filed a bad faith lawsuit Wolters Kluwer in the past for such allegations, then why would Wolters Kluwer need to include an indemnification clause in its agreement to begin with? You can’t argue that the risk is so small that the authors shouldn’t worry about it but so large that Wolters Kluwer has to protect itself with language that is significantly against the interests of the authors.
Ultimately, Wolters Kluwer was not willing to drop the indemnification clause and I withdrew my chapter from consideration for publication.
Takeaways on Indemnification in Scholarly Writing
First, ask for all agreements before committing to any type of authorship. In many cases, agreements and the included terms are sprung on authors at the last minute and become a “fait accompli” to which the publishers assume that you’ll agree because you’ve already spent large amounts of effort to complete the work.
Second, be sure you understand indemnification clauses in any contracts that you may or may not sign. Indemnification clauses are legally one of the most dangerous things to which you can contractually agree. Many states have recognized that indemnification is not appropriate in agreements between construction contractors and subcontractors. Indemnification between a contractor and subcontractor was ruled as “against public policy” in Delaware in Kempski v. Toll Bros., Inc. and was ruled as “illegal” and “against public policy” in South Carolina in DR Horton, Inc v. Builders FirstSource. The law firm Kegler Brown Hill & Ritter created a nice summary of state statutes regarding legality of construction indemnification clauses here. Ask any contractor or attorney to indemnify you and watch them squirm.
The silver lining this experience is that I’m putting the EMTALA chapter online for everyone’s use. I won’t get a copy of the Emergency Medicine Obstetrics book with my name inside, but hopefully the chapter will provide some guidance for those seeking answers about EMTALA and management of the obstetrical patient.
The EMTALA chapter in its entirety can be found here.
See this page for more articles I have written about indemnification.