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Hastings Communications and Entertainment Law Journal

Authors

Blake D. Morant

Abstract

A writer enters into an agreement with a publisher who is obligated to disseminate the writer's creative work. This contract often contains clauses such as indemnity provisions which seemingly protect the publisher from liability for marketing the work by shifting the risks of publication precipitously to the writer. Both parties accept this provision for disparate reasons: the writer, particularly a novice in this bargaining area, accedes to these risks either because of ignorance of the clause and its possible consequences, or a perceived lack of choice on her part; the publisher demands indemnification from the writer in the presumed belief that it will protect him from liability for publishing the author's work. Irrespective of these individualistic "delusions," both bargainers fail to perceive that the indemnity provision may not only frustrate their cognizant expectations, but also jeopardize their tacit goal of a future, more lucrative business relationship in the event that the writer's inaugural work is successful.

This article proposes that writers and publishers, and perhaps decisionmakers, should carefully scrutinize indemnity and other risk-shifting clauses to ensure their efficacy, fairness, and capacity to facilitate the parties' mutual expectations and goals. After an examination of the traditional, contractual paradigm which includes the concepts of motivation, consent, and paternalism, the article presents the general parameters of indemnification, and illustrates its dubious utility in the parties' contract. Acknowledging the publisher's probable reluctance to eliminate the indemnity provision from the agreement, the article then provides two alternate clauses which more equitably distribute the risks associated with dissemination of the writer's work. Ultimately, parties may discover that indemnity provisions are unnecessary and possibly counterproductive to their prospective goals.

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