Most manuscripts are not contentious enough to land an author in court. Some writers, however, do venture into highly controversial topics (like those found in memoirs or biographies). Or their fiction includes real people or characters based on real people. Or they create stories based on real-life events. For this subset of the writing world, the risk increases significantly that a published work will anger someone to the level of a lawsuit.
As the articles linked above explain, an author can minimize liability with a pre-publication review for potential legal claims. But doing so will not guarantee that a resentful third-party will not sue. So, what else can the risk-averse author do?
If you have vetted the manuscript for legal concerns, made the necessary changes, secured the appropriate permissions, and still fear your publication will spark litigation, you can minimize liability further with media liability insurance.
What is media liability insurance
Sometimes called media perils insurance, media liability insurance provides protection against liability claims for people who create and distribute media content. Typical claims that media liability insurance will cover include copyright infringement, defamation, invasion of privacy, and misappropriation of the right of publicity.
How to secure media liability insurance
If you are a traditionally published author, most publishers carry media liability insurance. Ask your publisher to add you as an additional insured on their policy. Determine what type of coverage the publisher’s policy offers. Most likely the protection will not be perfect. Unfortunately, that is not negotiable. Find out the policy deductible, which is often rather high (usually $100,000-plus per claim). Once the deductible has been paid, the insurance company will then pay any judgments or settlements. If the deductible is too high for you to pay, then either buy your own media liability insurance policy or consider buying a policy that covers the amount of the publisher’s deductible.
If you are self-published or the publisher will not add you to the policy, then you may want your own media liability policy. Some writing organizations like the Author’s Guild or the Independent Book Publishers Association offer policies to members. There are also insurance companies that specialize in media insurance like AxisPro, Chubb Group, or Trusted Choice. The costs and terms of policies constantly change so speak with a media insurance broker for guidance on the best policy for your projects. The deductible for a personal policy is more reasonable, usually in the $3000-$5000 range. Premiums can run anywhere from $1000-$2500 per year depending on the policy coverage.
Media liability insurance coverage
Like auto insurance, not all policies are created equal. Here are points to consider when evaluating policies.
- Claim coverage and limitations
- Your project will dictate what claim coverage you need. Ask a media insurance broker to help find the best policy for you, and explain the claim coverage.
- Most writers will want to protect themselves against claims of copyright and trademark infringement, defamation, invasion of privacy, and misappropriation of the right of publicity.
- If certain types of claims are excluded from the policy, you must pay to defend these claims.
- Be clear as to what territory the policy covers. Does the policy cover only claims within the United States? Or will it cover worldwide claims?
- Judgments and settlements
- Read the policy carefully to make sure the payment caps are reasonable.
- Legal fees and defense costs
- Some policies will not cover legal fees and defense costs. Some policies will cover those costs but cap the amount. Some policies require the insurance company to defend the litigation, which means they provide the lawyer. Litigation can be expensive, so it helps immensely if these fees and costs are covered.
- Punitive damages
- Punitive damages (also known as exemplary damages) are in addition to the judgment damages. Punitive damages are usually substantial because punitive damages are meant to be harsh. Some states prevent insurance companies from insuring against punitive damages. If claim coverage is available for punitive damages, get it.
- Occurrence or Claims Made policies
- There are two types of policies: either a claims made or an occurrence policy.
- A claims made policy covers a claim if both the incident and the claim happen during the policy period. Any claim filed after the policy expiration is not covered.
- An occurrence policy covers any incident that happens during the policy period, regardless of when the claim is filed. If a policy has expired, the incident will still be covered if it occurred during the policy period.
If your published work puts you in the unfortunate position of being confronted by someone threatening to sue, consult a lawyer immediately. Do not discuss the claims or your liability with the potential litigant, or agree to make changes to the manuscript, or promise to write a retraction until you have discussed your case with a lawyer. Simply tell the offended party threatening to sue that your lawyer will review the matter and contact them.
Hopefully, most authors will not need media liability insurance. If it is necessary, there are plenty of options available that will provide decent protection for a rather low yearly cost.
Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.