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Blockheads, attributions and indemnities

18 November 2015

When I was a physics undergraduate, we were allowed to play with the department’s newly acquired electron paramagnetic resonance spectrometer (if you need to ask, you don’t need to know). It was enormous (this was more than 40 years ago), but more vulnerable than a pastel to “microphonics” – tiny vibrations compared to which the omnibus in the rue de Berri that concerned one pastel owner was an earthquake. But some dials were not to be touched: they were to remain at the settings left by “the man from Bruker” (the makers of the machine), and since no one understood what they did, the superstition that the machine wouldn’t work if they were tampered with prevailed. I often think of the man from Bruker when I encounter bureaucrats who refuse to have a reasonable discussion about things that are wrong in documents. And in a career that progressed from physics to publishing to banking to art history there have been numerous such occasions.

Some of these may be of interest to fellow art historians. If you’re reading this blog, my guess is that there’s a good probability that you too are one. You may be employed in the academic sector, and you may also publish articles from time to time outside your employment. You probably won’t be a professional author, and you are unlikely to employ an agent or to engage the services of a solicitor to represent you in negotiations over publishing contracts. And you may have less experience of, or less interest in, such documents than I have. (A good point at which to say that I cannot give legal or tax advice, particularly not in a blog: so if anything below is relevant to you, get it checked out professionally before acting upon it.)

When Dr Johnson said that “no man but a blockhead ever wrote, except for money” he neglected to observe that many art historians are ideally suited to wearing wigs. Our interests are in research and communication, and a good many of us pursue these things, occasionally getting into print, with neither a desire, nor a realistic prospect, of making a profit, particularly when the expenses of travel, books, subscriptions and photography are taken into account. You may even, like me, normally waive any remuneration on the grounds that the tiny fees aren’t worth the trouble (and the journal may need the money more than you do). (This means among other things that any liability to tax arises under a different schedule, so you cannot issue a certificate of self-employment, although that is where many publishers’ dials are set.)

But if you’ve had to deal with publishers concerning your writing, you’ll know they fall into two categories, even when you’re not getting paid. One group takes an entirely pragmatic approach: they’ll print your article in their journal with no written contract at all, or just an exchange of emails, relying on common sense to see that you have given them a licence to use your material. The other group (wrongly) believe that such matters must be governed by a formal agreement. The difficulty is that they rarely have the skills to handle this, and the economics of publishing mean that it is seldom cost effective for them to hire in these skills. Often they have in the past engaged a law firm to produce a standard contract (sometimes they have simply “borrowed” a precedent from another publisher), but over the years these standards get amended, bearing the accumulated accretions of patches for past disasters. You can tell this quite easily when (as I’ve seen all too often) the alterations result in internal contradictions (e.g. a contract involving an assignment of copyright includes a clause referring to the grant of a licence). These blunders can render a contract meaningless or unenforceable.

Fortunately there are lots of places where authors can get help with such contracts (authors’ societies etc.), and in this post I’m not going to rehearse all the pitfalls that you can easily find explained in such sources. Rather I want to focus on an area that is specifically relevant to art historians. It’s important: if you get it wrong, it could have life-changing significance.

While the laid-back school of publishers can rely on implied conditions in doing without paperwork, one provision that cannot be inferred is an indemnity. That needs to be in writing, if it is needed at all. General publishers do have a legitimate interest in ensuring that their authors don’t libel third parties as both publisher and author can be sued, and so it is not uncommon for publishing agreements to include indemnities from the author to the publisher for the consequences of such libels. The publisher will say that the author was in a better position to check his facts than the publisher was, so this seems to him reasonable. The author, if he does anything more than sign on the dotted line, will think that it was perfectly obvious to the publisher that X, the subject of his biography, wasn’t going to be happy; the publisher has more experience in gauging the risks of litigation, and anyway is insured against it (which the author almost never is, particularly if he’s not running a business: you need to be covered in the year of the claim, not of publication). Armed with more reasonable precedents from authors’ societies it is usually possible to reach some mutually acceptable position for an important enough book. This will probably involve limiting the indemnity to matters that were known to, but not disclosed by, the author; to losses not covered by insurance; and to losses as finally determined by the courts.

But indemnities take on a different complexion in art history, for a number of reasons. Firstly, where the contribution is a journal article, the author’s negotiation position may be weaker (see below). Secondly, the opportunities for claims in art history go beyond the personal defamation that is the concern of general trade publisher in biography or politics. Of a whole range of torts, those concerned with the authenticity and attribution of works of art are both more complicated and potentially more financially ruinous than personal reputation. And thirdly, the international dimension means that author and publisher are exposed to the wrong-headed thinking of courts with completely different legal systems. (There are now significant differences in defamation law even between England and Scotland – in Scotland you don’t need to prove “serious harm” – so think carefully if your book is on sale in Edinburgh.)

The simplest possible example is when you state that you think someone’s Rembrandt is not by the master. You might think that that is protected as an expression of your opinion: but are you sure that that defence works in all jurisdictions? Alternatively, suppose you announce that another picture, thought to be by a follower, is in fact by the master (in your opinion). Someone buys it, and then finds that not only is your opinion not shared by other authorities, but that it is undermined by a document you might/should have known about/had seen ages ago, but had forgotten. And so on. (Before you start analysing duties of care and legal proximity, remember those won’t work in every jurisdiction.)

If you think these are idle examples that don’t happen in practice, you’re not following the reports in the general and specialist papers. Start with Berenson and the Belle Ferronnière if you think common sense, fairness or connoisseurship are any protection.

So indemnities matter, particularly if you write anything interesting. You can’t even escape by praising everything – although one would hope that the journal won’t want to publish you if your opinions are sufficiently bland not to create some risk of disagreement.

It may be that the journal considers that the author should bear all or some of this risk, and in cases where the journal doesn’t have commercial insurance the idea that the author should provide that insurance may seem entirely reasonable to them. But if so, why does the journal perform no credit analysis on the author’s ability to pay (what could easily be a very large claim)? Given that the author was so negligent as to sign the indemnity, can the journal rely on the chilling effect of the clause so to concentrate the author’s mind into providing sufficient care to avoiding claims? Of course not. (These claims can arise no matter how careful the author is; indeed the care most of us take in writing for publication is often obsessive and, even where fees are accepted, almost always results in an hourly rate of a few pence.)

But the matter gets worse. Many standard contracts ask for an indemnity, but offer the author who gives it no control over the proceedings. So a vexatious claim can be made; the journal might consult leading counsel (at your expense), who will always advise that there is at least a small risk of losing any litigation; the journal then pays up (at your expense), and you have no come-back. (Maybe the journal doesn’t intend to do this; but then it shouldn’t ask for the right to do so.) There is in this an important distinction in the position of the author and that of an insurer: no insurance company ever pays out without taking over the proceedings and instructing lawyers of its choice to protect its interests first.

You may not realise that that is what the contract means if you just read straight through; you need to look for the missing clause. I don’t believe many lawyers would advise you to sign an indemnity divorced from contest rights. If they did so – or indeed if the journal persuades you to sign one – it would only be on the basis that this will never arise. But if so, no indemnity is required (and commercial insurance would be available at a nominal rate).

A clause like this simply encourages vexatious claims from any aggrieved party aware that you and the publisher have an agreement that ties you together like Kilkenny cats. Insofar as it affects what you write, it militates for the innocuous and tends to undermine a journal’s credentials for incisive criticism. Vexatious claims are a particular hazard for art historians. The sort of person who owns a fake Rembrandt is quite likely to have more money than sense, as well as an irrational confidence in his convictions. (He may also own a football club or a newspaper, and probably deserves a Friends of the Bar award for enriching the legal profession.)

That indemnities on such terms are proposed at all, let alone accepted by many authors, tells us about the cognitive errors of art historians, blind to their legal risks, unaware of the directions from which disagreement may arise and overconfident in their judgements. Or perhaps just desperate to appear in what the industry calls “high impact” media.

That dependence is essentially the basis on which major scientific publishers continue to charge huge prices for journals which the authors could publish for free online. The formula was exploited ruthlessly by Robert Maxwell, for whom I used to work (see my earlier post Maxwellisaton), and Elsevier now owns that business. It was reported recently in the Financial Times (16 November) that the editorial staff (six editors and 31 editorial board members) of a prominent linguistics journal (for which the subscription is £1640 per annum) had resigned en masse in protest at what they regard as an unfair profit. A similar call several years ago for a mass boycott of the same publisher, with a petition signed by more than 15,000 academics, was however ineffective: there are simply too many academics who need to publish for career reasons. These protests weren’t about indemnities, nor even the fact that the authors who create all this intellectual property don’t get paid, but purely altruistic attempts to ensure that knowledge is affordable and accessible.

Affordable, accessible art historical research is threatened by two specific issues. I don’t in this post discuss the question of reproduction rights (see my post on copyright). But placing an unfair burden of risk on un- or under-remunerated authors is something of a sleeping volcano. We should deal with this now before an unfortunate victim has to be sacrificed to discourage the others.

Art historians – particularly those who don’t even get paid – should not be obliged to shoulder these risks just because they do so without thinking, and because the journals don’t want to think. We should behave more like a community, and establish a more equitable basis for proceeding before it’s too late. Art history publishing should make every effort to stimulate sharp, critical thinking and writing, and we all (particularly senior figures who sit on the advisory boards of journals) should fight to protect freedom of expression with Voltairean gusto. If the settings of the bureaucratic dials aren’t right, change them. If written authors’ contracts are needed, let them be fair, balanced and accurate without further demand. If there are risks, lay them off with insurers, not authors. And when authors do raise concerns privately, don’t simply dismiss them on the basis that other authors haven’t objected. Maybe the ones who are intelligent enough to understand these issues are the ones who should be published.

 

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From → Art history

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