Pub Rants

Agenting 101 Revisited: Author Warranties

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STATUS: On Friday it was colder in Denver than most cities in Alaska. Today it’s 60 degrees and gorgeous. But never fear, it’s supposed to snow again on Friday—therefore not breaking our snow streak.

What’s playing on the iPod right now? IT’S MY LIFE by Talk Talk

All publishing contracts have a clause that basically asks the author if the work is original and whether the author has the right to enter in this agreement.

That’s reasonable.

The clause will read something like this:

“The Author warrants, represents and covenants: that the Author owns all rights and licenses herein conveyed and has the full and sole right and authority to convey all such rights and perform its obligations hereunder; that the work is original with the Author in all respects, except for any portion which has been previously published and is identified as such; that, with respect to works of nonfiction, all statements contained in the Work as published are true or based on reasonable research for accuracy: that the Work is not in the public domain and is or may be validly copyrighted or registered for copyright in the United States and…”

And the clause will go on to make sure the Author hasn’t defamed anyone or invaded privacy. That there is no litigation pending or a claim outstanding. That the work won’t cause harm etc.

You can see where Mr. Frey ran into some difficulties with lines 5 and 6. Ahem.

To me, these are all valid considerations and the Publisher has the right to ask an author to attest to the above and sign his or her name to it in agreement.

What I don’t like, as you well know, is when the Publishers sneaks a little phrase in that reads something like this, “that the Work will be the Author’s next book-length work (whether under the Author’s own name or otherwise)”

This usually comes in line 3 after “rights and perform its obligations hereunder.”

Basically the Publisher is asking that the author warrant that this Work will be his or her next published work.

You know my take. That’s none of the Publisher’s business. The real issue is that the Publisher doesn’t want the work they’re buying to have to compete with a myriad of other titles by this author upon publication.

That’s not a true warranty. That’s a no-compete clause and it irks me to have this little sentence buried in with all the other elements of the Warranty clause that are actually relevant and justifiable by the Publisher.

Not to mention, embedding this phrasing is a recent occurrence (at least for the contracts I’ve been seeing).

So my advice is, if you are going it alone, to read carefully. There are some changes we as agents ask for when negotiating and dealing with the warranty and indemnity clauses but as you can guess, these are the two clauses that publishers show most reluctance to negotiate since the point of them is to protect the publisher. Yet, if you don’t deal with this pesky little sentence, you may find your career a little constrained.

13 Responses

  1. Kimber An said:

    Good for you, Denver. We’re back down to what I call ‘Booger-Freezin’ Weather’ in Alaska. Thanks for this on-going education. I think I get it, but only just.

  2. ~Nancy said:

    Yet another reason to have an agent.

    And it’s frigid here in the Northeast, too – about 8 degrees Fahrenheit this morning. Although it’s probably a “balmy” 10 or 12 by now. 😉


  3. kaedajnor said:

    so does this clause apply to *anything* published? Even articles or stories in a different genre?


  4. Anonymous said:

    Ever get the feeling that agents barely communicate with each other and publishers?

    After the ‘Dreamweaver’ post, I get the distinct impression that Ms. Nelson wants to rep finished manuscripts. Yet if you read down Miss Snark’s blog a wee bit, you’ll find that she “sells second or third projects based on sample chapters and outlines all the time.”

    Isn’t this verboten?

  5. Anonymous said:

    Anonymous–when an agent is first taking you on, they want a full manuscript (Miss Snark included–she’s said so on many occasions). They want to know you can finish a manuscript, and that the whole thing works, before they commit to trying to sell it. And the editors they send it to also want to be sure you know your stuff. But once your agent has sold one book of yours, then you can often make sales off the first few chapters and a proposal, because your agent and the editors are confident that you can deliver the final product. No miscommunication, just different steps in the writer’s career! 🙂

  6. Anonymous said:

    Cool! Now all I have to do is sell that first novel (groan, forehead to the keyboard, tufts of hair falling between keys). Ah well, writing is re-writing. Back to work.

  7. Anonymous said:

    Wow, I’m fluent in English, yet the way these clauses are written makes me think that they’re in Chinese or something.

    I’ll definitely be hiring a lawyer. . .

  8. Anonymous said:

    “The real issue is that the Publisher doesn’t want the work their buying to have to compete with a myriad of other titles by this author upon publication.”

    I think you meant “they’re.”

    Otherwise, thanks for the info.


  9. Anonymous said:

    So…is any reputable agent going to do this? Look for these clauses and fight to change them? Or it this just something you do as uber agent? I mean, I’m supposed to hear back from a very intersted agent this week. Am I supposed to assume they know this or am I supposed to ask if it’s as important to them as it is to you???

  10. Anonymous said:

    Funny that the person correcting your typo didn’t sign their name! Maybe they have a query on your desk.

  11. Twill said:

    There is a reasonableness to the Publisher wanting to make sure that you are working on the book that they are paying you an advance to write.

    Of course, any lawyer could drive a truck through the phrase “next book-length work”. If you have some mostly finished novels on submission, they are “previous book-length works”, right? And, since you don’t have control over anybody’s publishing schedule, the phrase clearly cannot prevent other houses from publishing other books of yours while this one hems and haws about jacket design?

    Besides, wouldn’t a high mid list author benefit *both houses* with having two books out at one time? Split the advertising, raise the profile, sign both books at one signing, life is good.

    I know, the publishers don’t look at it that way, but I think they’re wrong.