How to Publish without Financially Perishing

By Mock, Rodney P.; Savage, Arline et al. | Academe, January/February 2011 | Go to article overview

How to Publish without Financially Perishing


Mock, Rodney P., Savage, Arline, Simkin, Mark G., Academe


The increasing use of indemnity clauses in publishing agreements makes the author, not the publisher, fully responsible for defending even frivolous lawsuits against the publisher.

A law professor at the University of Oregon, Merle Weiner, published an article in the University of San Francisco Law Review that referred to a domestic-violence case. The defendant in that case read Weiner's article, concluded that the article was defamatory, and threatened to file a lawsuit against her. Because she worked for a university that expected her to publish articles as part of her job, Weiner asked it to defend her. But the university declined- she was on her own.

Weiner was able to use personal legal contacts to help her, and she eventually settled her case out of court. But her experience provides a lesson for all university faculty members: every time you publish an article, you run the risk of a lawsuit. Who pays the legal costs and expenses? The most likely answer is-you! And if you signed a publication agreement with an indemnity clause, you may also end up paying the publisher's legal fees and costs.

What Are Indemnity Clauses?

Publication agreements vary by publisher and sometimes by contract as well (for example, a publisher may have several different templates for agreements or may have revised its one agreement). A number of such agreements now also include indemnity clauses. "Indemnifying a publisher" means agreeing to pay for any loss, damage, or liability incurred by the publisher, or it can mean that the publisher has the right to claim reimbursement for its loss, damage, or liability from you, the author.

Academic journals include indemnity clauses in their publication agreements to protect themselves from third-party claims against themselves or their authors. Consider the following indemnity example from the publishers of Tax Notes, drawn from the files of one of the authors of this article:

The Author will, at his/her own expense, defend any claim against Publisher based upon a lawsuit alleging the breach of any representation or warranty in the preceding paragraph. Publisher will promptly notify the Author of the filing of any such suit and provide all information required to assist the Author in defending against the suit. The Author shall control the defense, appeal, negotiation, and settlement of such claims; however, the Author may not settle any such claim affecting Publisher's rights without Publisher's prior express written permission, not to be unreasonably withheld. Further, the Author shall compensate Publisher for any judgment entered against Publisher as a result of such a suit. Publisher reserves the right, at its own expense, to hire independent counsel to review and comment upon any settlement affecting Publisher's rights.

As this example shows, indemnity clauses essentially require authors to pay the legal fees and attendant expenses of any lawsuits against the publisher attributable to their published work. Depending on the particular contract, this could mean that, as soon as a publisher receives a legal complaint and hires an expensive law firm that specializes in such cases for its defense, you, the author, are responsible for the legal costs. Whether the lawsuit has merit is immaterial-you may foot the bill either way. In short, as C. Walter and E. P. Richards explain in their excellent 2002 article, "Publish and Perish," in Engineering in Medicine and Biology, authors signing publication agreements with indemnity clauses expose themselves to litigation expenses that may not be recoverable even if they win the lawsuit. Ironically, in the worst case, an author publishes and perishes!

The increase in liability exposure from publication agreements is especially important to university faculty for several reasons. One is the fact that "research and publication" is a formal part of many job descriptions and thus a condition of employment-a condition that generally requires signed publication agreements. …

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