Warranties and Indemnifications

Most songwriter contracts include a list of warranties, or guarantees the songwriter makes to the publisher about the song(s) being transferred.  There is nothing inherently unreasonable about this.  A good analogy is that when a buyer purchases real estate, the buyer prefers to have a warranty deed whereby the seller warrants that the title to the land being conveyed is free and clear of liens and encumbrances. When a publisher purchases a song, the publisher wants similar assurances that the song seller, (in this case, you, the songwriter), owns the song being sold.

The most common warranties you will be asked to make are that you wrote the song, that it is an original work, that it does not infringe on the copyright anyone else may have, that you are the sole owner of the song, free and clear of any other claims, that the song has not been previously published, and that you have not conveyed any interest in the song to anyone else.  A related clause deals with indemnification. Essentially, you agree to reimburse the publisher for expenses associated with any breach of the above warranties.

What are the parameters of the negotiations regarding these provisions?  The warranties themselves are reasonable requirements.  If a publisher is paying you money for a song, the publisher has a right to know that you are, in fact, the owner of the song.  The most you can do is to generally limit the warranties with the language “to the best of my knowledge.”

As for the indemnification, the first thing you should do is  make the indemnification language mutual.  In other words, if you promise to reimburse the publisher if your representations turn out to be untrue, the publisher should agree to reimburse you if the publisher’s representations turn out to be untrue. This seems so right and fair that most publishers will agree.

Once you’ve accomplished that, the publisher is more willing to revise the indemnification language itself so that the now mutual obligations are more reasonable. You shouldn’t have to reimburse every expense associated with every claim that is inconsistent with your warranties.  Instead, you should only have to reimburse reasonable expenses directly related to a valid claim that is either settled on terms approved by you or reduced to final judgment in a court of law.  You can’t really guarantee that someone else won’t claim that you have infringed on their copyright.  It is not unusual for a hit song to attract claims of copyright infringement, even if those claims are not ultimately true.  Without this limiting language, you will be stuck with all the publisher’s expenses defending or settling claims that weren’t meritorious to begin with.  You may still be, but if the publisher knows that it will be reimbursed by you for every claim, the publisher may be more willing to pay off a bad faith claim that you would have fought.

Require that you and your attorney be notified in writing as soon as any claim is made.  Insist that you and your attorney be allowed to participate in the settlement and/or defense of claims.  Ask that  you and the publisher share in the expenses and that those expenses be treated as an additional recoupable advance rather than reimbursable on demand.