Liability: how to limit yours / Part I: Know your risks, and avoid them

The information in this article cannot take the place of personalized legal advice from your own lawyer. NASW accepts no responsibility for decisions made by any person on the basis of the content of this article.

As a freelancer, there are four main ways you can limit your liability:

  1. Understand the actions or inactions that may cause you to be liable (libel, trademark/copyright infringement, right to publicity, right to privacy, negligent advice, etc.) and do not commit them!
  2. Try to minimize your exposure by striking or modifying indemnity clauses.
  3. Set up a business entity to separate your personal and business assets.
  4. Purchase a media or professional liability insurance policy.

In exploring these issues, I spoke with Anthony Elia, an attorney in Brooklyn who specializes in contract law for writers and others.

The first line of protection is really your best one. Elia says, "There's really not going to be a silver bullet. You can get insurance, or form an entity, but the best protection is going to be to educate yourself to understand these things — libel, copyright and trademark infringement, right of privacy, right of publicity, negligent advice — and not commit them." He uses a car accident analogy — we all have insurance and take other precautions to protect ourselves, such as wearing seat belts, but we all also (hopefully) still drive safely to avoid the liability.

Indemnity Clauses

In a perfect world, none of us would ever sign a contract with an indemnity clause, but in this world that's not always possible.

An indemnity clause, says Elia, is a promise to reimburse the publisher for expenses it incurs in connection with a claim made against it. These expenses may include judgments, the publisher's attorneys' fees, and/or sums paid to settle claims arising from your work. The obligation to pay is usually, but not always, triggered by a breach of warranty.

Elia advises limiting the clause so that you are only indemnifying against a breach of the warranties in the contract. In other words, you are only agreeing to indemnify your client in the actual case that you did something wrong.

The key point, he says, is to get the language changed on the clause so that it's not simply "arising from the author's work or this agreement," which basically opens you up to being responsible for anything that might go wrong in an article or publication. Instead, you want to make it clear that instead it only covers anything arising from an actual breach of the author's warranties.

A typical (bad) indemnity clause: "Author shall indemnify and hold harmless Publisher, its subsidiaries, and affiliates and their shareholders, officers and directors from any and all claims, debts, demands, suits, actions, proceedings arising from the author's work or this Agreement, and any and all liabilities, losses and expenses (including attorneys' fees and costs) and damages in consequence thereof."

Some modifications you can ask for to manage the risk:

  • The best option is to make sure that the indemnity is for claims, debts, etc., which arise from "an actual breach of the author's warranties," not for "all claims arising from author's work or this Agreement." [Editor's note: Many of us have also seen the notorious "claims arising from any breach or alleged breach."]
  • Try to gain control of the settlement process by adding: "The publisher shall not settle any claim, demand, action or proceeding without Author's consent." Don't let them settle quickly using your money.
  • Try to gain control of the attorney defending the case by adding: "Author may but is not obligated to defend such suit with counsel of Author's choosing, at Author's expense."
  • Try to cap your damages: "Author's liability hereunder is limited to sum which author received from the Association for the Work."
  • Try to add: "Author bears no responsibility for the addition of content or subject matter by the publisher or by the author at the publisher's request."
  • Ask to be added to the publisher's insurance policy as an "additional insured."
  • Obtain your own insurance (see Part III). While not to be relied on for a number of reasons, it may be helpful.

My thanks to Anthony Elia for his time and help in creating this article. He can be reached at:

The Law Office of Anthony N. Elia, P.C.
185 Prospect Park SW, #607
Brooklyn, New York 11218
ph: (718) 854-2361
fax: (718) 854-1025
www.anelaw.com

Kendall Powell is a freelance science writer who writes for Nature, the Los Angeles Times, and Howard Hughes Medical Institute, among others. She lives in Lafayette, Colorado, with her husband, daughter, and two Labradors. She can be reached at Kendall2@nasw.org.