Wording for ghostwriting copyright infringment waivers/agreements?

[Kadence]

I'm looking for a disclaimer or waiver or some sort of agreement to give to ghostwriters (who I'd be hiring online), that would pass any potential liability incurred by any copyright violations in their work onto the ghostwriter.

Anyone know where I might find something like this? Also, does anyone know of any etiquette issues (in terms of asking the ghostwriter to sign something like this) that one should be aware of?

[Robert Warren]

Anyone know where I might find something like this? Also, does anyone know of any etiquette issues (in terms of asking the ghostwriter to sign something like this) that one should be aware of?

A good ghostwriter will insist on their own contract, which should contain a clause that warrants original ownership and good faith. Mine says:

"VENDOR warrants that they are the sole owner of the Work and has full power and authority to make this Agreement, and that to the best of their knowledge the Work does not infringe on any copyright, violate any property rights, or contain any scandalous, libelous, or unlawful matter."

That's then followed by an indemnity clause protecting me against legal issues arising from materials and instructions I receive from the client in good faith.

Again, I wouldn't bother drafting the agreement yourself - an experienced professional will insist on using their own. Just make sure you're getting a warranty similar to the above. Also, if the overall dollar value of the job (cost, sales, etc.) justifies it, have a good IP attorney look the contract over to ensure that you're protected. A good ghostwriter or copywriter may bristle at having a prospect attempt to shove their contract down his throat (I certainly would), but wouldn't at all be offended by them wanting a lawyer lookover.

[Dan Schulz]

Expanding on what Rob said, I'd also include in your contract with the ghostwriters that they will be responsible for the work they do (in this case, defending you against any action taken against you for any infringements they were responsible for).

Something along the lines of (keep in mind I am not a lawyer):
Contractor (that's the ghostwriter in this case) agrees to indemnify, hold harmless and defend Client (that's you), its officers, employees, and representatives, from and against any and all claims, actions, or demands, including reasonable court costs and legal fees, resulting from any breach of the warranties in (where your warranties are listed in the contract). Client shall promptly provide notice to Contractor of any such claim or proceeding, and shall assist Contractor, at Contractor's expense, in defending any such controversy.

[Robert Warren]

Something along the lines of (keep in mind I am not a lawyer):
Contractor (that's the ghostwriter in this case) agrees to indemnify, hold harmless and defend Client (that's you), its officers, employees, and representatives, from and against any and all claims, actions, or demands, including reasonable court costs and legal fees, resulting from any breach of the warranties in (where your warranties are listed in the contract). Client shall promptly provide notice to Contractor of any such claim or proceeding, and shall assist Contractor, at Contractor's expense, in defending any such controversy.

IANAL either, but one small thought. That clause would seem to make indemnity contingent upon a proven breach ("resulting from any breach of warranties"), rather than the accusation of one. And in itself, that's fine - while a writer should warrant original ownership, it's unrealistic to expect the writer to defend the client against every goofball half-baked accusation that comes down the line.

I don't indemnify my clients like this, mainly because if the client were sued hard for copyright infringement as part of the work I did for them, and I actually did it (which I'd never do), they could easily pound the crap out of me for breach of contract and warranty and hit me for all those damages. Pretty clear cut, open-shut lawsuit. In effect, by directly stating a warranty of originality, I'm already indemnifying the client against a proven breach.

But usually the point where indemnifications come into play is when the breach is unproven; the indemnifying party is then agreeing to defend the indemned in case some nitwit rolls in off the street and starts filing paperwork. If I were under contract with the above clause as written, under that situation, I'd hand it off to my attorneys and insist on proof of breach.

Most copyright cases get settled out of court - it's a lot cheaper and less traumatic, but a settlement (as far as I know) doesn't constitute proof: it's an accusation that you're paying to make go away. If the client settled and then came back to me to cover them under the indemnification clause, I'd again insist on proof. When a judge had ruled that a valid copyright infringement exists (rather than just a surrendering defendant), then we'd talk.

Or more to the point, my attorneys would talk. Because then the client would have to demonstrate that I knowingly, intentionally violated my promise of warranty. More time in court. And since they'd have paid a fortune to defend the copyright claims, they'd be hitting me for massive damages, and I'd have no logical reason to settle. I'd have to slug it out, which would mean a lot more out-of-pocket costs for everyone. And don't forget the nasty countersuit as I recoup my own losses.

For obvious reasons, there's no way in hell I'd indemnify a client against unproven claims. I don't warranty against accusations of infringement. Any writer who does is a writer who isn't staying in business for very long.

I'm not saying all this to sound like I typically weasel out of responsibility (I don't), or like I don't take my warranties seriously (I do); I'm only pointing out that in true practical terms, a copyright indemnification clause is probably little more than feelgood language. At best. At worst, it leaves the client with a deceptive picture of the relationship, thinking that the writer will come running to the rescue whenever some trailer park defective decides "he done stole my book idear". It's a great way to muddy up the waters.

[Kadence]

So the clause in question is a Warranty of Originality, and the writer should provide it themselves? Good to know. Thanks a lot Robert

[Robert Warren]

So the clause in question is a Warranty of Originality, and the writer should provide it themselves?

Yep. Just make sure it's all part of a nicely done, tight little contract that includes work definitions, compensation, IP transfer, venue designation, inheritance, partial enforceability, and all that other fun stuff. Personally, I wouldn't look for it as a rider or attached agreement; best to keep these things straight and simple, right in the original agreement. There's no reason the warranty of originality shouldn't be there.

If your writer doesn't have a standard contract, or the contract doesn't cover this, then that's a big clue that you need a different writer. Most folks billing themselves as full time writers these days are new, or are actually part-timers, and will likely be out of the business in two years or less. They haven't been around long enough to learn these ropes. For a project as large as a ghostwritten book, it's a bad idea to hire anyone other than a seasoned professional, and the professional will have the paper.