YOUR PUBLISHER KNOWS IF YOU'VE BEEN BAD OR GOOD
So Read Your Morals Clause for Goodness Sake
As a literary agent I’ve never felt the need to perform a background check on my clients. But the growing appearance of so-called morals clauses in publishing contracts has made me wonder if I should be investigating whether my authors have ever been accused of domestic abuse or driving while intoxicated or shoplifting. If you don’t believe that that is any of my business, read your book contract. Your personal life is my business—or could be if a publisher terminates your contract for a violation of your morals provision. You might be required to return your advance to your publisher.
Morals clauses were created by publishers to address situations where authors under contract have committed, or merely been accused of committing, criminal or scandalous conduct that the publishers believe will damage the author’s or publisher’s reputation or harm their ability to profitably sell the author’s books. They were seldom found in contracts until recently, but now social media have made public accusations more common. Publishers realized that nothing in their existing contract boilerplate gave them a clear way to terminate a contract if an author’s reputation was damaged in a manner that might negatively impact sales of the book or cast opprobrium on author or publisher.
The clauses devised by various publishers differ in significant ways, with some far more stringent than others. What they all have in common is the publisher’s right to terminate a contract in its sole discretion if actions or alleged actions of the author lead to public condemnation.
Here is an example of such a clause, which may help us identify some of the problems inherent in them:
In the event Author is publicly accused of an act of moral turpitude (substantiated by the preponderance of evidence, a court decision, or Author’s own admission), a violation of any Federal law or any other conduct which subjects or could be reasonably anticipated to subject Author or Publisher to public ridicule, contempt, scorn, hatred or censure, or could materially diminish the potential sale of the Work, Publisher will have the right to terminate this agreement upon written notice to Author of the public disclosure of such conduct or alleged conduct. Publisher will have the right to demand from Author and receive payment within thirty (30) days of the demand, a sum equal to all advances paid to Author under the terms of this Agreement that have not been recouped by Publisher prior to said termination.
What’s Behind Morals Clauses?
From the viewpoint of publishers, the provision is ostensibly designed to put authors on notice that their misdeeds can harm their reputation, cost them money or even destroy their career. All of which is true. But it also gives publishers another way to get out of your publishing contract, because the addition of morals language provides the publisher with remedies for conduct that do not otherwise have a valid place in the contract.
In short, we are talking about the application of legal sanctions to moral transgressions, though there is seldom any relationship between the performance of a book and the character of its author.
Defining Immorality
If the language of morals clauses were as highly detailed as that of criminal codes, and if the burden of proof approached the level of a court trial, agents might not have as much concern as many now do. But a close reading of many of the provisions offers no assurance that publishers need to be diligent in applying them. For example, scarcely a word or phrase in the above example carries an objective, concrete meaning. To agents trained to scrutinize contractual language, phrases like “moral turpitude,” “ridicule,” “contempt,” “scorn,” “hatred” and “censure” beg for definition. But they beg in vain. “Violation of any Federal law”? Which of the tens of thousands—or is it hundreds of thousands?—of statutes are we talking about?
Even such legalisms as “preponderance of evidence,” “court decision” or “author’s own admission” can be ambiguous. Tell-all memoirs, for instance, are often dependent on confessions of shocking conduct, and indeed publishers often encourage authors to make the kinds of revelations that sell more books but also tend to provoke strong objections and even outrage by offended readers. And, of course, it is not uncommon for sales of a book to be boosted by allegations of its author’s moral turpitude.
Finally, in the sample clause quoted above, the publisher not only has the right to terminate a contract on the basis of “public disclosure” of detrimental conduct but even disclosure of alleged conduct. One does not have to be an eminent jurist to find such vague language disturbing and potentially dangerous.
To the extent the clauses are based on “immoral” conduct, moral values are both inherently subjective and defined by community standards. But which community? For every interest group there is an equal and opposite interest group. What may arouse scorn among Black people may not offend some white people; what gay people find hateful may be a matter of indifference to some straight people. When you boil it down to its essence, a publisher’s decision to cancel or withdraw a book on the grounds that the author has given offense to somebody or subjected himself or herself or the publisher to “ridicule, contempt, scorn or censure” may too often boil down to yielding to whoever yells the loudest, whether the accusation has been verified or not.
Some morals clause prohibitions may make sense for authors writing for religious publishers, where moral codes (based, for instance, on the Ten Commandments) are, understandably, more explicit. But for those writing for the general trade book market, the idea of a publisher being able to terminate a contract based on its claim of a breach of moral standards raises grave First Amendment and other Constitutional issues.
The potential for abuse of this process is unsettling, for it gives publishers an easy way to cancel contracts about which they have second thoughts. If, for instance, the first book of an expensive multi-book contract flops, an allegation of immoral behavior could make it easier to break the contract for the remaining books. The mere existence of a morals clause is a form of intimidation whose dampening impact cannot be underestimated, for it may be the first step down the slippery slope of self-censorship, publisher censorship or political censorship.
Solutions
The advent of the 24-hour news cycle and the rise of social media have substantially raised the incidence of charges—whether true or false—against public (as well as private) figures, including authors. Because publishers have deep pockets, they are big targets for lawsuits or for pressure by aggrieved parties to terminate contracts or recall published books. So it’s no surprise that there has been an increase in the use of morals clauses to thwart legal pressure. But I hope I have made it clear that as things stand, authors are in genuine jeopardy of being victimized by the hasty or irresponsible application of those clauses. As policing author behavior is a non-starter for agents and publishers, the logical course is to negotiate with publishers to modify these egregious features. The language must be revisited and every term scrupulously defined so that both publishers and authors may feel reasonably protected.
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This article was originally published in the Authors Guild Bulletin Winter 2018-Spring 2019
Richard Curtis's books on publishing are available at Open Road https://openroadmedia.com/search-results/books/Richard%20Curtis
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