Indemnification, part 2

The other day, I posted some thoughts about indemnification clauses. Last night, ASMP-SD had a presentation on copyright by IP attorney Matt Murphey of Gordon & Rees, LLP, so I “took advantage” of Mr. Murphey and, before the event, asked him about what I had posted. He agreed with my points and even took the time at the end of his presentation to note that it is important to negotiate indemnification clauses. He emphasized that you can negotiate limitations on these clauses. Then, he pointed out that if you don’t have an indemnification clause in your contract, there is law that may, by default, grant broad indemnification to your clients!

This morning I did a teeny bit of research on the issue and found that the UCC §2-312 has been interpreted by courts to apply to copyright licenses. That’s probably gobbledy-gook to you and that’s fine, don’t worry about the UCC (it will make your head spin) but do know that it is a set of laws that 49 states have adopted (not LA) and which serve mostly to function as the default rules for contracts. In other words, if you don’t write your contracts to cover a topic in the UCC, the UCC rule will apply by default. For indemnification issues, §2-312 is the default rule of concern and it says essentially that the seller (you) guarantees that your work doesn’t infringe (on someone else’s IP rights) and if a claim saying it does infringe is brought against the buyer (your client), you will pay up.

So, having an indemnification clause in your contract is a good thing FOR YOU. As long as it is written well, of course. You need one to limit your liability. Your clients will likely want a broad one. Negotiate something fair and reasonable and get on with shooting the project.

[Again, and as always now, this is NOT legal advice. I am not a lawyer! It is only my opinion.]