Q. I have decided to self-publish one of my out-of-print novels. Do I need liability insurance?
A. Maybe. Some background: when your book originally was published, your publisher (unless a VERY small press) carried “media perils” insurance protecting against claims of infringement of copyright, trademark, title, slogan or other misappropriation, libel, invasion of privacy or publicity, plagiarism, defamation including emotional distress, infringement of the right of privacy or publicity, outrage, and misappropriation of property rights, and even personal injury in some cases.
Typically both you and your publisher would have been sued in the event of one of the above claims. The publisher’s insurance policy would have protected the publisher – not you — unless you were listed as an “additional insured” on the policy (a negotiating point in publishing agreements, by the way). However, even if not directly protected, you still would have benefitted by the publisher’s defense of the claim through attorneys hired by its insurance company. Depending on the wording of the “warranties and indemnity” clauses in your publishing agreement, you might ultimately have had to reimburse the publisher for its defense costs — the insurance deductible – even if the claim was dismissed or not sustained. (There also may be a conflict of interest between you and the publisher, or the publisher may settle, leaving you alone in the lawsuit, but that’s the subject of another article.)
Once your book’s rights revert to you, however, and you self-publish, you lose the benefit of the publisher’s insurance policy. If you are sued, you will have to pay your own attorney’s fees and any judgment. (Some of the print-on-demand publishers have insurance that might defend the claim, but you can’t rely on this).
The good news is that, at least for novels, the risk of being sued is low – with the exception of true-crime novels, whose risk is higher because of potential defamation, invasion of privacy, or violation of the right of publicity suits.
Ideally you should have liability insurance – if you can afford it. Unfortunately, premiums are likely to be anywhere between $1-4,000 for $500,000 to $1 million protection with a $5,000 deductible. You can contact any general insurance broker to get quotes for media liability insurance, or go directly to companies that specialize in publisher’s insurance, such as Argo Insurance (http://www.publiability.com).
Many writers also believe – wrongly – that they can limit their liability by incorporating or forming a limited liability company. Although doing so will protect you from certain contract claims, in most cases you still will be personally liable for copyright infringement, defamation, or invasion of privacy.
In summary, because of its cost, most fiction writers will forgo liability insurance. If, however, your book has a high risk factor because of its subject matter or characterization, it may be worth investing in it. You’ll sleep better at night.
Daniel Steven is Chairman of the MWA Contracts and Grievances Committee and a publishing and media attorney (www.publishlawyer.com). This column provides general legal information; consult an attorney for application of the law to your specific circumstances.
© 2010 Daniel Steven