How Getting Canceled on Social Media Can Derail a Book Deal

From The New York Times:

When Simon & Schuster dropped Senator Josh Hawley’s book a day after the Jan. 6 riot at the Capitol, the news caused an explosion of attention, condemnation and praise.

Amid the cries of censorship and cancel culture, however, the way the publisher backed out of the deal got relatively little attention. Simon & Schuster invoked part of its contract typically referred to as a morals clause, which allows a publisher to drop a book if the author does something that is likely to seriously damage sales.

Widely detested by agents and authors, these clauses have become commonplace in mainstream publishing over the last few years. The clauses are rarely used to sever a relationship, but at a time when an online posting can wreak havoc on a writer’s reputation, most major publishing houses have come to insist upon them.

“They’re just something you have to deal with now,” said Gail Ross, a media lawyer and the president of the Ross Yoon Agency, whose clients include Senator Sherrod Brown, former Attorney General Eric Holder and the CNN contributor Van Jones, among dozens of other political figures and journalists. “Because you’re not going to be able to sign a contract without them in some form.”

. . . .

Morals clauses do not require authors to be upstanding citizens. Used in contracts across many industries, such clauses are designed to protect companies’ financial interests if somebody they’ve invested in — be it a chief executive or a football star being paid to wear a logo — does something that harms their reputation. But since the point of these clauses is to protect a company from damaging behavior it doesn’t yet know about, morals clauses are, by their nature, vague.

. . . .

“They’re squishy,” Ms. Ross said. “An agent’s job or a lawyer’s job is to make them as objective as possible.”

The clauses vary from publisher to publisher, and even from one literary agency to the next — every agency strikes its own deal with each publishing house — but the general principle is that they take aim at conduct that would invite widespread public condemnation or significantly diminish sales among the book’s intended audience, and that the publisher didn’t previously know about when it signed the deal. If an author has a propensity for getting in fistfights, for example, the book cannot be dropped because he or she gets in another one.

. . . .

“It diametrically changes the premise between a publisher and an author, which traditionally always meant that the author’s words in the book were what was promised to the publisher, not the behavior beyond it,” said the literary agent Janis Donnaud. “The fact that the publisher can be judge, jury, executioner and, in fact, beneficiary of these clauses seems incredibly outlandish.”

. . . .

Regnery, the conservative publisher that signed Mr. Hawley after Simon & Schuster dropped his book, also has a morals clause — what Thomas Spence, its president and publisher, described as the “infamous 5F of our contract.” Regnery will not take it out.

“This is the one thing in our contract that I have virtually no discretion over,” he said. “I’ve been told it’s got to be in there.” The morals clause in Mr. Hawley’s new contract was not a contentious issue, Mr. Spence added.

. . . .

In the book world, executives say these clauses were a part of Christian publishing agreements before they became fixtures in mainstream deals. The televangelist Benny Hinn was dropped by his publisher, Strang Communications, for violating its “moral turpitude provision” in 2010, after he was caught in a relationship with another minister before his divorce was finalized.

. . . .

The clauses began proliferating more quickly after the #MeToo movement revealed allegations of misconduct against many public figures, including Mark Halperin, a journalist and author whose book contract was canceled by Penguin Random House in 2017 under its conduct clause.

Today, Penguin Random House requires conduct clauses in all its contracts — that way, according to the company, the publisher isn’t implying that it trusts author A but not author B.

. . . .

Agents generally consider Penguin Random House’s clause to be less onerous than others, in part because the company states that authors will not have to repay any money they’ve already received; the publisher just wants the right to walk away. Simon & Schuster, on the other hand, typically includes a clause that says it can demand its money back. (Penguin Random House said last year that it plans to buy Simon & Schuster.)

Link to the rest at The New York Times

PG will observe that morals clauses are massively squishy sorts of things wherever they’re used.

As the OP suggested, some of them are effectively punitive damages clauses when they require an author to repay all the money she/he has received from the publisher, regardless of whether a publisher could prove to a judge or jury that it actually suffered any financial damages due to the author’s misbehavior. As a general proposition, courts tend to look askance at contract provisions that are unduly punitive, but that involves spending the money to get the matter before a judge.

In an era when Woke culture apparently has the power to turn business executives of all sorts into quivering and spineless pools of goo, a morals clause can be dangerous to a traditionally-published author’s financial and emotional health, both presently and in the future.

PG’s three potential responses for an author:

  1. Provide in the publishing agreement that, if the publisher invokes the morals clause to terminate the publishing agreement, neither the publisher nor any of its employees, agents or representatives will make any public announcement or other disclosure that states or implies that the publishing agreement was terminated due to the author’s alleged violation of the Morals Clause. “The parties have agreed to an amicable termination of their publishing agreement” or something boringly similar announcement of the termination of the publishing contract might be specified in the publishing agreement. The purpose is to make certain that the termination of the publishing contract doesn’t bring any attention to the author or publisher. This gives the publisher the protections it seeks via the Morals Clause without publicly tarring the author’s reputation.

2. Write under a pen name, then live in meatspace and politically under your real name. Demand a clause in your publishing contract that requires the publisher never to disclose your real name and include a substantial financial penalty if they do – 3X the amount of money they have already paid you plus any unpaid portion of your advance if the publisher or any past or present employee ever connects your pen name with your real name. Require that a model be used if the publisher wants an author photo and an agreement that any media interviews be conducted remotely without video. Make certain the publisher’s obligations and penalty for failing to maintain your anonymity continue for the full term of the publishing agreement, e.g., the full term of your copyright.

3. Require that the Morals Clause be reciprocal. Under the publishing agreement, the publisher together with its executives, employees and representatives, will be held the same standards of behavior that apply to the author pursuant to the Morals Clause. In the event of the publisher, etc., violates the morals clause, the author is entitled to exact similar penalties as the publisher can exact if the author violates the morals clause.

29 thoughts on “How Getting Canceled on Social Media Can Derail a Book Deal”

  1. Keep in mind that the suggestions above will probably only work for publishers in New York, which actually allows enforcement of morals clauses for non-employees. OK, maybe New Jersey, too.

    But not Illinois. Not California. Not Washington. Not… even… Indiana. (And I have specific instances in mind for each of those four, but either I am, or the individual(s) who consulted me is/are, bound by various confidentiality provisions that are enforceable.)

    That said, I like #3. It might be amusing to assert it against Buena Vista on the ground of Harvey Weinstein’s misconduct while he was also a Disney “person”…

  2. Re (2), don’t use a model – who might be identified or even sue because of their identification with this morally deplorable author – but one of those AI programs that can generate absolutely lifelike fake images. That way not only does the author photo not identify you but you can generate your ideal image of your authorial personality. As for interviews, insist that they are all done not just remotely but by email exchange, so not only do you have time to think about your answer but there is no question as to exactly what you did say.

    • Speaking of lifelike fake humans, EPIC GAMES has a new tool for game developers called Metahuman creator, pre-announced this week:

      https://www.youtube.com/watch?v=S3F1vZYpH8c

      It’s only a matter of time before it’s creations are grafted onto video confering tools to create lifelike avatars. Won’t be affordable for most indies but would have been perfect for Rowling’s alter-ego.

      • Interesting, and a bit scary. Rowling’s alter-ego had quite a nice short biography and a simple video, maybe in uniform and talking about his military career, would have been a nice backup.

        When I was young we had sayings such as “seeing is believing”, “the camera does not lie” and the like. Always somewhat dubious given the unreliability of eyewitness accounts and Stalin’s minions manipulation of old fashioned film photographs, but there was quite a lot of truth to it. It really is a new world now where the whole idea of evidence is melting away – not what most of the SF I read in my youth was predicting: mass surveillance was always around but it tended to be assumed that the results reflected reality. (I know that this is a gross generalisation and you’ll probably want to quote counter example; in fact I’m now trying to remember exactly what Mike got up to in The Moon is a Harsh Mistress.)

        I guess the hope is for technological solutions – maybe based on now trying to remember exactly what Mike got up to in TMIAHMquantum cryptology – to confirm that the images were not manipulated, but does this help if there was no camera filming the (non existent) event in the first case?

        Mind you, at the moment there are often so many phone cameras being used that manipulating all the evidence will be hard, though SF writers will soon be writing plausible ways to do it.

        • Ugh, the editing really screwed that up as a bit of text got copied around and time ran out. The third paragraph should have said “…maybe based on quantum cryptology…”

        • Technology usually provides solutions for problems technology causes (along with ones it doesn’t) but deep fakes isn’t a technology problem. Rather it’s a people problem. And you know how those end up right? Handwaved…

          The Big Lie doesn’t need video or audio, good quality or bad; just lazy minds incapable of critical thinking on one end and exploitative manipulators at the other. It’s not as Facebook, Twitter, or ordinary gossip requires any exhibits. Think of the myriad urban lengends and tall tales in folklore, going back centuries. Or more reently the UFO crap peddled by tradpub and tbe History channel among many.

          People prefer comfortable illusion to harsh reality which makes them easy prey for manipulators. Curiously enough, this is the dark premise now playing out on WANDAVISION from the mouse house, normally purveyors of comfortably empty light shows. Two episodes to go, though, so there’s plenty of time for them to arrive at a sugar coated cotton candy resolution.

          As for EPIC’s MetaHuman app, it is a commercial tool for creating commercial products, so it almost certainly will fingerprints its creations so they can be tracked for future lawsuits over uncredited use. They are very jealous of their IP and actually litigated a company out of existence for violating the TOC.

          Anyway, the real danger isn’t from the tech but from the bald-faced liars and their willing accomplices in the distribution channels who selectively brand as lies only those things that disagree with their vested interests. Even Stalin era obvious manipulation gets supported while inconvenient HD video gets buried.

  3. Long before social media was a thing, Bret Easton Ellis got “cancelled” over American Psycho.

    Except it his case he kept the advance from the original publisher (something like $500,000 in 1990 dollars), took the book to another publisher, was paid a similar sum as an advance there, and got published.

    I sometimes wonder if this situation is the driving force for our modern “morals clauses.”

    • Ellis was not cancelled over American Psycho. He changed publishers later… but it was based on the content of his writing and had nothing to do with his personal conduct. No “morals clause” ever came into play. <sarcasm> He would have been protected by other soldati in the Bennington College Mafia anyway. </sarcasm>

      Just business realities and convenient excuses. My understanding is that there was business dissatisfaction on both sides, but I haven’t ever put either Ellis or his editors at Knopf under oath for a deposition and questioned them on that, so that “understanding” comes from reading between the lines of other sources… and may well be incorrect. Regardless, no morals clause interface, and certainly no “cancellation” (not even so much as Hawley’s purported downgrade from S&S to Regnery, which distribution-wise is not a downgrade at all; it’s not even a change, because S&S is the distributor for Regnery!). Further, Ellis found the money in H’wood (he grew up in the Valley) much more attractive, so has primarily worked with screenplays for the last couple of decades.

      So, Joseph, I can’t agree here.

  4. I’d encourage authors to never use KDP, ACX, etc. as cloud storage for their work. Keep your own files on your own physical storage and backup up by other cloud storage. The same goes for email lists and author website data. Unfortunately, you cannot do anything to protect hard-earned reviews or social media following.

    Before Hawley and Parler, Patreon canceled Laura Southern and she lost all her income.

    • Or you could just not be a white-nationalist loon and try not to violate established international law (by trying to block humanitarian relief efforts to prevent immigration to a nation of which you’re not a citizen) IRL.

      Southern is, again, a poor example, because it was at least as much the content of her writings as her (IMNSHO almost certain, notwithstanding enforceability or propriety of Patreon’s “inconsistent conduct” clause) infringement of her terms of service through her off-site activities.

      All of that said, never rely upon anyone else as your sole archivist. Sure, keep an easily accessible copy on a well-regarded cloud server if you like… and if there’s nothing confidential in it. But physical backups onto offline, archive-quality media are the way to go. And making copies of those online reviews helps, too; the Wayback Machine is nowhere near good enough, and probably does not constitute admissible direct evidence (only material useful to impeach someone or refresh their recollection, which doesn’t do much good if you can’t get them for testimony).

      It’s not paranoia when They really are out to get you… especially if you used to be one of Them and know their mindset. “No secrets allowed” — it’s not just a way of life, it’s the foundation of the universe!

      • We can agree that Southern is a loon, etc. but everyone knows Patreon made a political decision. This platform harbors ANTIFA. It’s a slippery slope to what someone is willing to cancel you over.

  5. I keep thinking of Nick Cole being dropped by his publisher because the editor found his premise for the reason a robot apocalypse occured in Ctrl-Alt-Revolt as “objectionable”. Ended up self.pubbing it and then repubbbed with a small press, did huge sales, and didn’t have to pay a big 5 publisher a cut…

  6. Yup. Flash cards and thumb drives are dirt cheap.
    So are portable hard drives.
    Under $50 for a trillion bytes’ worth.
    Just one of a zillion:
    https://www.amazon.com/Western-Digital-Elements-Portable-External/dp/B06VVS7S94/ref=sr_1_3?crid=25RG7XN89RHYR&dchild=1&keywords=portable+hard+drive&qid=1613818666&refinements=p_36%3A1253504011&rnid=386442011&s=electronics&sprefix=portble+hard%2Caps%2C259&sr=1-3

    There are also several reliable outfits offering cheap or even free online backup and/or storage space, that *won’t* read and index your data. Amazon, Microsoft, and Dropbox being just a few.

    The basics of proper backup are well known and available all over: at least two copies on separate media, at least one offsite, plus copies on a reliable Cloud service or two. If you rely on thumb drives, $20 will do you. If you archive research material and other content, maybe $100. If writing is to be a business it is a cheap investment.

    There is no need to rely on the kindness of strangers if, as with so many other things about the writing business, you…

    Do your frakking homework!

    😀

    It’s a marginal business for most even if you do everything right but the least you can do is avoid the known pitfalls. And the stories of authors who don’t have even a paper copy of their published manuscripts are all over. And this is 40 years after Word Processors became a consumer product in the late 70’s.

    There is no excuse to rely on a publisher or distributor to hold your content for you. That is just plain stupid regardless of your politics or morals.

    (sigh)

    We are sooo heading into Mike Judge’s IDIOCRACY world.

    • BTW, note that I said “manuscript”.
      Some tradpubs have tried claiming that editing and publishing entitles them to a slice of copyright. A proper backup should include the author’s final version before anybody else touches the text.
      As noted, it’s not paranoia if they *are* out to get you.

      • Felix, I hope you don’t mean “other than by a rights grab in the contract,” because claiming ain’t prevailing on the claim. That theory was pretty well trashed by 1991, because mere “editing” is just “sweat of the brow” or “labor,” and the Supreme Court rejected “mere work” as a basis for a copyright claim in Feist. Instead, there must be sufficient discernable original expression… with the intent of coauthorship by all parties. Not. So. Much.

        N.B. I’ve been on the dark side of the editorial desk, in an academic environment where this sort of thing is more customary, and just no.

        • I was thinking of the EU where the big publishers own a lot of the bureaucrats and politicians.

          They had (have?) a proposal in progress that granted them such rights as a matter of law. It was hidden in the 2016 proposal that also granted “Press Publisher Rights” ostensibly to address online distribution it wasn’t limited to it. A follow up to Moral Rights, “Neighboring Rights” follows *exactly* the sweat of tbe brow theory.

          https://cyberlaw.stanford.edu/blog/2016/12/ceipi-opinion-eu-proposal-neighboring-right-press-publishers-online

          Some of the criticism of he proposed law:
          ——–
          Granting rights to ever more actors will reduce the economic value of each right covering essentially the same economic use. While the Impact Assessment accompanying the Directive Proposal concludes that the “introduction of a related right covering digital uses of press publications is not expected to generate higher licence fees for online service providers”, it fails to assess the impact of the Directive Proposal on authors. As the “pie” does not get any bigger, the authors’ share will inevitably decrease.

          The Directive Proposal does not limit the subject matter to publications presently protected by authors’ rights. It goes far beyond, restricting, for example, uses of works in the public domain. Lifting materials out of the public domain has unwanted consequences, impinging greatly on freedom of expression and democratization, while favouring centralization of information.
          Any economic input into the value chain of creative activities does not merit the grant of a property right. Also, a grant of a neighbouring right to one economic actor cannot be a reason for granting such right to another one. Moreover, the Directive Proposal does not follow any meaningful logic of investment reward, since it proposes to grant rights to any publication, even those that do not involve any substantive investment. For example, publication of any trivial information on a “news website” will be sufficient for the grant of neighbouring rights.
          —-

          And since it is fashionable in certain US legal circles to cite foreign (mostly EU) law to trump US precendents, the issue is not as settled as it might seem.

          A touch of paranoia can’t hurt.

          • Felix, that particular proposal was put forth by media companies as sort of a “Database Directive Response to Salinger,” and even its proponents didn’t believe it should apply absent significant editorial contribution of expression — they just couldn’t find a way to get what they did want in without overreaching, too. The various legal staffs shut it down rather quickly, in large part because somebody said “TRIPS” and everybody proposing the measure said “oops, we forgot that.” (Admittedly, that’s what happened in the smoke-filled back rooms; clove-scented smoke, too, which just makes it worse.)

            I’m always amused by the sort of claim of “foreign (mostly EU) law to trump US precedents,” because the actual arguments are nothing of the sort, and never “just about” a same-level law trumping US law. It’s at most about treaties trumping statutes, and there we can learn an awful lot from migratory birds. (Really: Much of the US law on the relationship between “treaty obligation” and “what parts of US statutes — existing or proposed — must change to respect treaty obligations” comes from migratory-bird treaties among Canada, the US, and Mexico, and their intersection with federal and state hunting laws. And the fact that this is covered in the required 1L/2L course on Constitutional Law taken by every law student just demonstrates how divorced from reality the isolationist “can’t learn nothin’ ’bout interpretin’ treaties from them furriners” view is.)

            • There was a lot of handwringing among authors as the proposal was supported by the big multinational publishers and whatever the legal types might have believed, the Brusselcrats did sign off on the proposal and it got pretty far. Far enough the Stanford Law Scool saw fit to cover the public debate, as linked.
              I wouldn’t assume the push is dead, either. The same multinationals’ push to force pay for links just resurfaced in australia. Neighboring rights will probably resurface any day as will “re-copyrighting” PD material as Gutenberg’s fight with the german publishers showed.

              As to the rest, I only reported what the (non-Fox) media (NBC, ABD, etc) has reported of a growing trend of judges ignoring US common aw and precedent in their rulings, choosing to justify them on law outside the US legal system. That is one of the reasons for the rising strength of the federalist society over the last two decades, last I heard.

              But whatever.

              I do think that a little paranoia is merited when dealing with the BPH sharks.

              • A substantial part of the problem is that media almost never reports on the source or validity of sources of law, treating it all as monolithic “the law.” That’s very much like treating all purported biographical details at Wikipedia as equally credible and explanatory.

                We haven’t been helped over the years by the dumbing-down of education so that a substantial portion of the population (including too damned many “journalists” and “opinion columnists”) thinks there’s “constitutional law,” “legislative law,” and nothing else. When even the Schoolhouse Rock version of “A Bill” seems too sophisticated for the classroom, you know you’re in trouble!

                And the less said about the hidden agendas (and sponsors) of that conference at Stanford, the better. Let’s just say that I disagreed vociferously with the conference organizers… but that due to health considerations, couldn’t do anything more than written condemnation (especially since the incomplete-but-persuasive documentation regarding the sponsorship didn’t fall into my hands until last year).

                Finally, on the “re-copyrighting” issue: It’s not at all what the Project Gutenberg people claim it is — it’s that German courts are actually paying attention to both TRIPS and Berne Article 5(2). One of the reasons that Project Gutenberg moved from the Seventh Circuit to the Sixth Circuit is a US-court circuit split on the weight to be accorded non-US nonjudicial treaty interpretations relating to cross-border rights. It’s ugly, and does the Project Gutenberg people no credit. (The tl;dr version is that the Rule of the Shorter Term cannot even be considered until the Berne Convention term has expired… and a lot of “failed to renew” material claimed as “public domain” by Project Gutenberg is still inside of its Berne Convention term outside the US, and therefore in copyright outside the US regardless of failure of US formalities. It’s not “re-copyrighting” — it’s “failed formalities don’t take it out of copyright in the first place.”)

        • The usual suspects: Random House/Penguin and Hachette, IIRC.
          Lost both lawsuits but if neighboring rights passes…
          (And since its a “monkey see, monkey do” business it only takes one win.)

          It’s neither trivial nor a tradpub only issue.

          Try this:
          https://www.google.com/url?q=https://watershedchronicle.wordpress.com/2014/05/10/do-editors-have-copyright-interests-in-books-they-edit/&sa=U&ved=2ahUKEwjAv-L-hYHvAhWt1FkKHcXzD74QFjAKegQIBhAB&usg=AOvVaw3yI8EPjZ7bi505GzftARdc

        • IMWTK, but SCCLF.

          Inquiring minds (may) want to know, but settlement confidentiality clauses last forever.

          I can say that it is not an empty set. I can, in the sense of “I have the requisite knowledge” name one or more members of that set. I am not allowed to do so. I can, however — suggest looking at two books purported to be legal guides for writers that were written by Los Angeles-based “entertainment attorneys” and published at some time between 1991 and 2011, because those attorneys are not bound by said confidentiality provisions and are instead speaking for themselves.

          • I’m curious, C.E., about why you put “entertainment attorneys” in quotes. Are you saying that such a category does not exist? We seem to have had a similar conversation earlier about “transactional” or “contract” or some such. I’m trying to understand.

            • I don’t have access to the books and I am going off memory (for example, a short search showed that I had misleadingly misremembered one of the author names), so I didn’t want to misstate how they actually did characterize themselves from years-ago memory.

              And if you’ve dealt with enough entertainment lawyers, you’ll find that there are a lot more lawyers who claim to be entertainment attorneys than actually practice entertainment law. But that’s for another time. It’s related to the problem of collection lawyers saying they do “creditors’ rights law” (which is ordinarily a different matter than standing up in small-claims court for status with sixteen cases, thirteen of which will be disposed of because the consumer-defendants didn’t show up).

              • OK. FYI: the entertainment lawyers I know work in Hollywood and called themselves “entertainment lawyers” (or attorneys).

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