Caution

Creator Originality and Non-Infringement Warranty

You warrant the work is original and does not infringe, the warranty that drives most indemnity claims.

Show it
Look in the representations, warranties, or IP section for phrases like "represents and warrants", "creator warrants", "warrants that", "the following warranties", "is original", "does not infringe", "owns all right title and interest", or "has the right to grant". Section headings like "Representations and Warranties" or "IP Warranties" signal the clause directly.
Decode it
Originality and non-infringement warranties are the foundation of most indemnity claims. Breach typically triggers indemnification, fee clawback, and termination together. Where the warranty is absolute rather than qualified to your knowledge, you are liable even for infringement you could not reasonably have known about. Where the scope extends to brand-provided materials, you are warranting things outside your control. Where survival is indefinite and there's no cap, breach years after engagement end still triggers significant consequences.
Fix it
Push for five standard protections: qualify warranties with "to the best of the creator's knowledge following reasonable inquiry", add a liability cap, for example at a level linked to the engagement fee, bound warranty survival (a defined survival period after the engagement), add reciprocal warranties for brand-provided assets, and add carve-outs for items the creator cannot reasonably verify.

What it means

This contract has you warranting (promising) that your work is original, does not infringe anyone else's intellectual property, contains no defamatory or unlawful material, and that you have all necessary rights to grant the licence or assignment. These warranties are the foundation of most indemnity claims, breach typically triggers indemnification, fee clawback, and termination together.

An originality warranty is your promise that the work is yours and does not infringe anyone else's rights, so its scope decides what you could be liable for. Where the warranty is "absolute" rather than "to the best of your knowledge", you are liable even for infringement you could not reasonably have known about (e.g. similar work you have not encountered). Where the warranty scope extends to brand-provided materials (music, footage, brand guidelines the brand supplied), you are warranting things outside your control. Where survival is indefinite and there's no cap, breach years after engagement end can still trigger significant consequences.

What to check before you sign

  • ·Are the warranties qualified by "to the best of the creator's knowledge" or stated as absolute?
  • ·Does the warranty scope cover only your own original work, or extend to brand-provided materials?
  • ·Is there a liability cap on warranty breach?
  • ·How long do the warranties survive, engagement only, defined tail period, or indefinite?
  • ·Does the brand provide reciprocal warranties for brand-supplied assets?
  • ·Are there carve-outs for items the creator cannot reasonably verify (e.g., similar independently created works)?
  • ·What does the warranty cover beyond originality and non-infringement, defamation, unlawful content, rights to grant?

How to fix it

  • Qualify warranties with "to the best of the creator's knowledge following reasonable inquiry". Most important single fix, bounds liability to events the creator could reasonably have known about.

  • Add a cap on warranty breach liability, for example at a level linked to the engagement fee.

  • Bound warranty survival to a defined survival period after the engagement rather than indefinite.

  • Add brand-side warranties for brand-provided materials, music, footage, brand guidelines, product information.

  • Carve out brand-provided materials from creator-side warranties, the creator cannot warrant cleanness of materials the creator did not create.

Negotiating it

A good opening

"Could we qualify the warranties with "to the best of the creator's knowledge following reasonable inquiry", add a cap on my liability for warranty breaches linked to the engagement fee and a defined period after the engagement for how long my warranties last, and add a brand-side warranty for brand-provided materials? "

When to walk away

Absolute warranties, indefinite survival, no liability cap on warranty breach, no brand-side warranties for brand-provided materials, and refusal to add any of the standard protections, combined with broad indemnity scope, is a strong walk-away signal. The structure creates open-ended creator liability for matters the creator cannot reasonably verify or control.

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Educational guidance, not legal advice. For high-value or complex deals, get independent legal advice from a qualified professional.