While sparks continue to fly between magazines and their free-lance contributors over electronic reproduction rights (see "Database Dollars," cjr, September/ October 1992), a pair of clauses are creeping into magazine contracts that could not only be economically dangerous to free-lancers but might also have a chilling effect on investigative and critical journalism.

This newly expansive warranty and its partner, the blanket indemnification clause, are showing up in an increasing number of free-lance contracts. The former requires the free-lancer to vouch that the piece won't violate any of a long list of individual and corporate rights; the latter obliges the writer to pay legal fees and damages if any legal action is taken in response to the article that can be traced to an infringement, or alleged infringement, of those rights. If an ornery subject sues -- or even threatens to, and the magazine engages a lawyer to deal with it -- the free-lancer is liable for all costs. The risk of legal challenge, once shared by publisher and writer, shifts entirely onto the writer's shoulders.

In the past, a writer warranted only that the piece was original and neither libelous nor defamatory. Now these warranties are far more sweeping. "The Work [does] not violate or infringe upon the copyright . . . , rights of privacy and/or publicity, or any other statutory, common law or other rights of any party," reads Hearst's Good Housekeeping contract. Giant CondŽ Nast asks writers to affirm that the work will not "give rise to any claim by any third party."

To truly hold to such a promise, a writer would have to be familiar with statutes in every state and be able to predict every potential third party's behavior. "It's a bad-faith clause," says David Goodman, co-chair of the journalism campaign for the National Writers Union, "because it asks writers to guarantee something they can't."

Far more pernicious than the expanded warranty, though, is the cargo of dynamite -- the indemnification clause -- riding behind it: "You [the writer] hereby agree to indemnify Hearst and its licensees and assignees from any and all claims, demands, and liabilities (including reasonable counsel fees) arising out of or resulting from the breach or claimed breach of the foregoing representations and warranties." In other words, you, the writer, pay. It used to be that the magazine's lawyer vetted touchy copy for problematic statements. Together, editors and writer made sure the copy was well substantiated. If somebody sued, the freelancer helped gather evidence for the defense -- and the company footed the bill. Not anymore, under the new clauses. As Goodman, of the writer's union, interprets them: "Somebody sues, the publisher sails off on his yacht and leaves me in my dinghy to sink."

Some writers have been able to modify or delete such clauses. One Gruner & Jahr contract places the clause in brackets, as if to delete it if requested. Literary Caval-cade, published by Scholastic Inc., has an indemnification clause, though at least one writer deleted the phrase "or alleged breach"; she'd only have to pay if the magazine lost a suit. A writer for Modern Maturity, published by the American Association of Retired Persons, crossed out the whole indemnification without a problem.

 Yet Harper's has refused to take the clause out, the Rodale Press contract starts with it, and The New York Times Magazine has recently begun to require the writer to "reimburse [the company] for
 any loss or expense if these warranties are not kept." Among these warranties is the exclusion of libelous or the vaguely
 worded "other unlawful material." Smithsonian's clause, though it sounds tentative, is no less binding than its more lucid cousins: "You may be held responsible for any expenses incurred as a result of any claim of a violation of these warranties." Legal fees, of course, even to get a case dismissed, are "prohibitive to a free-lancer," says a lawyer for the Libel Defense Resource Center, and getting to summary judgment can run "in the tens of thousands."

While most contracts include some warranty clause, not every publisher holds writers financially responsible for breaches. Hachette and CondŽ Nast still simply ask that the writer cooperate in responding to and defending against claims. A few do better: The Philadelphia Inquirer and Yankee Magazine cover the free-lancer under their own insurance policies.

And there is some feeling that these clauses' bark may be worse than their bite -- legally binding, but to the publisher not worth enforcing. Lawyers in the field say they've not yet heard of a publisher suing a writer over one, and they concede that doing so might be akin to trying to get blood out of a radish. So what is the language doing there? Two lawyers for gigantic publishers said the same thing, in practically the same words. Publishers put in the clauses "because they can," as one put it, "and writers will sign the things." "Pure and simple," said another, "our job is to protect the interests of the company -- not to establish relationships with writers."

The indemnification clause may be no big deal to the publisher, but it's scary to a writer potentially signing a house away on the dotted line. That's why organizations representing free-lancers, such as The American Society of Journalists and Authors, and the National Writers Union, have strongly condemned the practice.

And beyond the ethical and economic problems these clauses represent, they could have another result unforeseen by the penny-wise lawyers who pen them. A free-lance writer might wonder, Should I go after this rumor that Newt Gingrich embezzled $300,000 from a startup private-prison company? How about publishing the heresy that Roseanne looked better fat? Am I going to risk my life's savings for a $2,500 fee?

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