Q:  I’m a writer and just got an agreement with an “Indemnification” clause I see in all of my contracts but I’ve never really been sure what it means.  This one says:  “Writer shall indemnify, defend and hold harmless Producer, and its licensees, successors and assigns… from and against all third party claims, damages, expenses, and liabilities (including, without limitation, attorneys’ fees) that may be asserted against or incurred by or imposed upon Producer arising out of any breach or alleged breach by Writer of any representation or warranty made by Writer herein.”  Can you shed some light on this please?

A:  That’s a pretty piece of literature isn’t it?  I could read language like that all day.  (Wait a second, that’s pretty much what I do!!  Lord help me.)

In plain English (or as plain as a lawyer can make it), an indemnification provision is basically saying that if you do something wrong like lie to your Producer about something concerning the work you’re doing, and, because of that lie, the Producer ends up getting sued by some third party, you’re on the hook for the Producer’s losses and attorney’s fees associated with that lawsuit.

For example, if you’re a writer, you’ve almost definitely promised to your producer in your representations and warranties that the work you’ve created is original and not based on some third party’s work.  Let’s say you submit your script entitled “I’m So Excited, I’m So Scared” to the producer who produces a movie based on the script.  It turns out that you based large portions of your script, and some of the dialogue in it, on one of your favorite episodes of Saved by the Bell.  The owners of the copyright in that episode sue the producer for copyright infringement.  Because you breached your representations and warranties by stating that your script wasn’t based on any third parties’ materials when it in fact was, you would have to indemnify the producer for any damages it had to pay in the copyright suit, as well as its attorney’s fees.

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