Industry & Advocacy News
January 24, 2019
The Authors Guild objects to publishers’ new and increasing use of so-called “morals clauses.” These contract provisions allow publishers to terminate a book contract, and in many cases even require the author to repay portions of the advance already received, if the author is accused of immoral, illegal, or publicly condemned behavior. Publishers insist they need the clauses to protect themselves in the event an author’s reputation becomes so tarnished after the book contract is signed that it will hurt sales. But most of these clauses are too broad and allow a publisher to terminate based on individual accusations or the vague notion of “public condemnation”—which can occur all too easily in these days of viral social media.
The ambiguity and subjectivity of these clauses make them ripe for abuse. Publishers should not have the sole discretion to decide whether accusations are true. And, if the accusations are not true, they should not subject the author to termination. Publishing houses should perform due diligence and determine whether the book and its author fit their objectives before entering into agreements. Broad morals clauses give publishers yet another unfair way out of a contract when they decide they don’t want to publish a book for whatever reason.
The moral conduct of an author is not germane to the author’s fulfillment of obligations under the contract; nor should it be a basis for termination, much less returning the advance. The author’s side of the bargain is to deliver the book promised in a timely manner, not to uphold any unspecified standards of behavior.
What constitutes behavior “subject to widespread public condemnation,” “moral turpitude,” or similar terms used in these clauses varies widely and often has as much to do with a nation’s current sociopolitical climate as it does with ethics. As playwright Lillian Hellman notably wrote in response to a subpoena to testify before the House Un-American Activities Committee, which was investigating Communist infiltratration of Hollywood and other American institutions, “I cannot and will not cut my conscience to fit this year’s fashions.” Yet, before McCarthyism came to an end in 1954, it destroyed the careers of thousands of writers, filmmakers, artists, academics, and other left-leaning intellectuals. In 1990, before the courts declared it unconstitutional, the NEA, bowing to pressure from cultural conservatives, mandated that grant applicants had to sign “obscenity pledges” promising not to use public funds to create works of a morally questionable nature. Now publishers apparently want the ability to terminate an author’s contract for failing to predict how their words will be received by a changing public. This is a business risk like any other, yet publishers are attempting to lay it solely at authors’ feet.
Worst of all, morals clauses have a chilling effect on free speech. A writer at risk of losing a book deal is likely to refrain from voicing a controversial opinion or taking an unusual stand on an important issue. Women writers and writers of color, who are already potential trolling targets, may choose not to speak out in their own defense for fear of drawing internet fire that might result in a contract termination. The voices and opinions of those who are already most at risk of being silenced are put at even greater risk by these overbroad clauses. They give the publisher the power to police an author’s behavior and even an author’s speech both in and outside of the manuscript.
In the rare instance where an author has been convicted of an illegal act or publicly admitted to immoral behavior so deleterious that it compels the publisher to end its relationship with the author, other provisions exist allowing for the termination of a book contract. Vague and overbroad contract clauses are not the solution.
Sample Morals Clauses:
“In the event that Author is publicly accused of the violation of law, the infringement or invasion of the rights of any third party, inciting infringement or invasion of third-party rights by others, or is otherwise accused of libel, slander, or defamatory conduct, or any other conduct that subjects, or could be reasonably anticipated to subject Author or Publisher to ridicule, contempt, scorn, hatred, or censure by the general public or which is likely to materially diminish the sales of the Work, Publisher may terminate…”
“Publisher may terminate… if Author’s conduct evidences a lack of due regard for public conventions and morals, or Author commits a crime or any other act that will tend to bring Author into serious contempt, and such behavior would materially damage the Work’s reputation or sales.”
“Publisher may at any time prior to publication choose not to publish the Work if past or future illegal conduct of the Author, inconsistent with the Author’s reputation at the time this Agreement is executed and unknown to Publisher, is made public and results in sustained, widespread public condemnation of the Author that materially diminishes the sales potential of the Work. Should Publisher elect not to publish the Work pursuant to this section, Publisher shall give the Author timely written notice of such decision, all rights in the Work shall revert to the Author, no further advances shall be payable, and the Author shall not be required to repay any sums paid to date.”