Home » Big Publishing, Contracts » In the #MeToo Moment, Publishers Turn to Morality Clauses

In the #MeToo Moment, Publishers Turn to Morality Clauses

4 May 2018

From Publishers Weekly:

Until recently, the term “moral turpitude” is not one that crossed the lips of too many people in book publishing. But Bill O’Reilly, Milo Yiannopoulos, Sherman Alexie, Jay Asher, and James Dashner changed all that.

A legal term that refers to behavior generally considered unacceptable in a given community, moral turpitude is something publishers rarely worried themselves about. No longer.

Major publishers are increasingly inserting language into their contracts—referred to as morality clauses—that allows them to terminate agreements in response to a broad range of behavior by authors. And agents, most of whom spoke with PW on the condition of anonymity, say the change is worrying in an industry built on a commitment to defending free speech.

“This is very much a direct response to #MeToo,” said one agent when asked about publishers’ growing insistence on morality clauses. Most sources interviewed for this article agreed with this sentiment, citing the way sexual misconduct allegations and revelations are ending careers and changing the way companies do business. But it’s not just sexual harassment charges (which embroiled bestselling authors O’Reilly, Alexie, Asher, and Dashner) that publishers are scrambling to protect themselves against. It’s also the fallout that can come from things their authors say.

The situation with Yiannopoulos highlights this. S&S’s purchase of his book Dangerous in December 2016 caused a backlash in certain circles of the industry, with some complaining that the right-wing provocateur peddled in hate speech and should not be given a platform by a major publisher.

In February 2017, after the deal received bad press and several of S&S’s authors threatened to leave it, the publisher canceled Yiannopoulos’s book. The cancelation coincided with the resurfacing of an old interview Yiannopoulos gave, in which he appeared to condone child abuse.

S&S said that it canceled Dangerous because the manuscript was not to its liking. (The language in most author contracts gives publishers quite a bit of latitude in determining what constitutes a suitable manuscript.) Some felt, however, that the publisher was looking for a reason to drop the “alt-right” bad boy. Yiannopoulos sued S&S but wound up dropping the case earlier this year.

The controversy surrounding Dangerous highlights the stakes for publishers at a moment when platforms and reputations can be built, or destroyed, with a tweet. For agents, the Yiannopoulos case underlines some of the biggest concerns about morality clauses: the threat of muzzling speech.

“The gist of it,” one agent said in reference to a clause in Penguin Random House’s boilerplate, “is that [the publisher] wants the right to cancel an author’s book anytime the author says or does something the publisher doesn’t agree with. It’s crazy.”

. . . .

 “There are obviously a lot of very complex things going on here,” he said, speaking to the way publishers are reacting to the shifting social climate. He also noted that most publishers he’s dealt with have been open to changing these clauses. “When you go back to [publishers] and remind them that authors are allowed protected speech, political or otherwise, my experience is that they’ve been very responsive.”

But the agent who called these clauses “crazy” said he felt that more nefarious possibilities lie ahead. “Once Medusa’s head is removed from the box, a whole series of events can occur,” he complained. “Maybe [the publisher] signs up three books for $1 million, and the first book doesn’t do so well, and they use this clause to get around what’s legal and fair. This is like dropping a pebble in a pond: there are a lot of ripples.”

. . . .

“There are instances where it is appropriate to cancel a contract with someone—if, say, they are writing a book on investing and they’re convicted of insider trading.” But Rasenberger has concerns about the new boilerplates she’s been seeing. “These clauses need to be very narrowly drawn. The fear is that clauses like these can quash speech that is unpopular, for whatever reason.”

Another agent admitted to being distressed by the fact that some of the morality clauses she’s seen “are going very far.” She said that though she and many of her colleagues think it’s “not unfair for a publisher to expect an author to be the same person when it publishes the book as when it bought the book,” she’s worried how extreme some of the language in these new clauses is.

“If you’re buying bunny books or Bible books, these clauses make sense,” said Lloyd Jassin, a lawyer who specializes in publishing contracts, referring to deals for children’s books and Christian books. He wondered, though, about a publisher trying to hold authors of any other type of book to a moral standard. Noting that morality clauses are about money, not morality (specifically, they’re about a publisher’s ability to market an author), he posed a hypothetical. “Is the author of The El Salvador Diet, which touts a fish-only regimen, allowed to be photographed eating at Shake Shack? That goes to the heart of the contract.” He paused and added: “This is definitely a free speech issue.”

Link to the rest at Publishers Weekly

PG is old enough to remember when morality clauses aka morals clauses were considered unacceptably puritanical.

Morality clauses are standard practice in some Texas divorces. (They may also be used in some other states, but PG has only heard about the Texas variety.)

PG understands that courts in several Texas counties automatically issue orders including morality clauses on a temporary basis when a divorce petition is filed and there are minor children. Morality clauses can also be permanent and continue after the divorce. Since a divorce court may have continuing jurisdiction over custody matters, if the custodial parent and children move out of state, a custodial parent who violates the morality clause elsewhere may be hauled back into a Texas court for enforcement purposes.

PG further understands that a typical Texas morality clause will prohibit a custodial parent from having any adult to whom the custodial parent is not married be present in the home from 10:00 pm to 7:00 am if the children are also there. Grandparents and similar relatives are permitted, but on at least on occasion, a morality clause has been enforced to prevent a lesbian lover from spending the night with a custodial parent.

On many more occasions, a “friend” of the custodial parent may walk out of the door at 9:59 pm and quietly return at 10:30 pm after the children are in bed. In the morning, when the alarm clock sounds at 6:30 am, the friend gets up, gets dressed and leaves, only to return at 7:01 am with donuts.

As might be assumed, if the non-custodial parent asks for a change of custody because the morality clause was violated, the kids are usually the principal witnesses in such litigation.

PG has not made these comments to denigrate the great state of Texas, its laws, judges or citizens. He is merely pointing out that the same types of legal provisions that might be considered hopelessly retrograde in the context of a Texas divorce are now absolutely right, proper and essential in a Manhattan publishing contract.

 

Big Publishing, Contracts

16 Comments to “In the #MeToo Moment, Publishers Turn to Morality Clauses”

  1. Felix J. Torres

    Yup.
    Morality clauses.

    Definitely heading towards neo-victorian times.
    Different rationale, same solutions.

    Dress codes, next?
    There’s hints of it in recent airline brouhahas.

  2. All that was Old is new again, I guess.
    And I suspect there are a number of social conservatives who are if not pleased about the movement, then at least happy somewhat that standards of modesty and morrality are being brought back into the workplace, I’m one of them.
    And it’s not as if we don’t know what rampant gender mixing in society leads to, just consider VP Mike Pence comments about not dining alone with a woman who is not his wife.

  3. Too bad those morality clauses don’t cover acts of the publisher …

    All the more reason to self publish, that way the only morality clauses you face are from that person that greats you in the mirror each morning. 😉

    • That guy in the morning mirror is a curmudgeon. We almost never speak, thank goodness.

    • It’s all part of the new anarcho-tyranny. Anarchy, because they cannot (or do not) enforce the laws equally. Tyranny, because they use the law as a tool to control and repress the law-abiding.

      • Felix J. Torres

        They can but choose not to.
        The new guiding principle in domestic politics is:
        “Reward your friends, punish your enemies.”

  4. Why not just call them marketability clauses? It wouldn’t necessarily make deciding the issues more clear or fair, but it seems to be me it would be a more accurate statement of the intent.

    • Because that would give them less leverage for future? Morality clause is so much easier to spin to assume more authority and power.

      • Felix J. Torres

        Plus it positions them on the “correct” side. Wouldn’t want people to think they’re just avoiding risk, liie the other author liability clauses.

        • The truly wonderful thing about the ‘morality clause’, and the Policy that it represents, is that it serves as a simultaneous fig-leaf for both moral bankruptcy and practical incompetence. If a publisher finds one of his writers insufficiently profitable, and chooses to torpedo that paltry person’s career, he can invoke Moral Policy and pretend that he is motivated by something nobler than the bottom line. Contrariwise, if the publisher (as is common to the breed) goofs up monumentally and misses out on a massive bestseller, he can point to his Moral Policy and say loftily that he would never dirty his hands with such a sordid product.

          Bad business decisions are defended on moral grounds, bad moral decisions are defended on business grounds, and the Moral Policy stands as a convenient bridge between the two. Every year, hundreds of publishing functionaries are saved by this device from the labour of improving their skills or consulting their consciences. And we, my poppets, laugh and applaud.

          (Signed)
          H. Smiggy McStudge

  5. I saw that same clause sometimes, but I can’t swear the people weren’t in Texas (long story, but the cases that crossed my desk sometimes happened in other countries, and just as often all over America). Whenever the clause appeared, it was often a wife making sure the ex-husband’s mistress — well I guess the mistress was promoted to girlfriend at that point — didn’t stay over while the kids were there.

    I think most people don’t mind pleasant fictions for the kids. When I was a kid, my best friend had a novelty living in her house: a maid! Who was a man! The house was always messy, which I innocently concluded was the explanation for the rarity of male maids: they are not very good at it 😉 My parents and the parents of the other neighborhood kids didn’t object to us playing at my BFF’s house, and I think the figleaf was why. Parents like not having to have awkward conversations …

  6. I would hope that if an author were stuck with a morality clause that the author’s agent would make sure all rights reverted to the author immediately upon its invocation. And maybe for any backlist, too. It could temper any incentives the publisher might have to apply it injudiciously.

    By recommending this slight mitigation, I am not saying I think it’s a good thing. To the contrary.

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