ATTORNEY SENDS OPINION ABOUT THE EXAMINER.COM CONTRACT

Hi Angela,

Read your 5/6/09 piece on the pay-per-click meat market. I had inquired of Examiner/Clarity regarding writing on consumer law— after doing some research on this “Examiner” thing, and reading the contract, I don’t anticipate moving on this even if they contact me.

As an aside, one provision of the contract is somewhat ominous and not immediately obvious to a lay reader. It has an “indemnification” clause in it. You will commonly see this nonsense in property management contracts, commercial leases and many other contracts. Here it is:


4. Indemnification

You agree to indemnify and hold the Examiner.com, Parties harmless from any claim or demand, including reasonable attorney’s fees and costs, made by any third party due to or arising out of your use of the Site, including without limitation your actual or alleged violation of these Terms of Use, or infringement of a third party’s intellectual property or other rights by you or another user of the Site using your computer or account.



So, if a lawsuit or claim were to be brought, even if meritless, naming Examiner/Clarity, the writer is now put in the position of paying for a defense and any judgment. These types of terms should be negotiated between parties and if it is a deal breaker, the writer obtains insurance and perhaps has the publisher named as an additional insured. This is really a trap for the unwary. E.g., a property management company had an indemnification clause in their “boilerplate” contract. I said no. They agreed to my obtaining insurance and naming them as an additional insured.

Thought you might be interested in this issue. Never have I had a client ask first before they signed such an agreement. This also raises the issue of the advisability of carrying insurance as an online author, as anything published can be viewed in a myriad of locations and there is no control over how the “publisher” presents the piece. The exposure is something that could be disastrous for a writer. Imagine someone in another state sues the publisher for false light invasion of privacy or for defamation or copyright infringement. Assume the claim is meritless. The indemnification clause and the cost of the writer defending, especially out of state, can be the prelude to bankruptcy.

Regards,

Charles J. Tarr
Attorney at Law

BAD HAIR, RIPPED T-SHIRTS AND JAMMIES, OH MY! Author Photo Blunders…

Finally! Someone attempts to make it clear in regards to copyrights on photographs. As a struggling photographer, I can’t tell you how many times a client didn’t understand this. Many of them actually want to have a professional photo but want it for free and don’t realize just how much work went into the photo. Much of the work is more than just clicking the shutter.

I am thrilled that you pay photographers, and I hope you pay them well. It isn’t easy for a photographer
to make a living these days as people are forced to cut back on things. I stongly suggest that if an author needs PR shots, they don’t rely on friends or family as the quality of the photographs will suffer. Spend a little money on someone that knows what they are doing and the photographs will be worth it.

Keep up the good work with the newsletter, website and family. Nothing worth having comes easy.

Jeff Slater
https://www.jrslaterphotography.com