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What Writers Need to Know About Morality Clauses

3 August 2019

From Electric Lit:

In 1921, the silent film star Fatty Arbuckle was accused of raping and murdering the actress Virginia Rappé at an illicit gin party he’d thrown in his hotel room. Though Arbuckle was acquitted in court, the damage to his reputation ended his career and cost his employer, Universal Studios, a lot of money. As a result, Universal began to protect its investments by including morality (or morals) clauses in their contracts, which allowed the studio to simply fire any actor who acted badly off-set.

While morality clauses became standard in Hollywood, the publishing industry never really followed suit. An author’s obligation has been to deliver their work, not uphold a certain standard of behavior. It was never a secret, for example, that Norman Mailer stabbed his first wife or that William S. Burroughs murdered his second. It didn’t need to be; for better or worse, an author’s book was seen as a thing apart from their personal life. Or insofar as their personal life was relevant, moodiness and depression or even abusive tendencies have long been considered part of the “artistic temperament” and didn’t detract from sales.

But cultural standards are changing, and customers are more likely to let an author’s personal behavior determine whether or not they will read their book. This shift has become more visible since the beginning of the #MeToo movement, when allegations of sexual assault, harassment, or misconduct against authors, including best-sellers like Junot Diaz, James Dashner, and Bill O’Reilly, has led to author boycotts, rescinded or canceled prizes, and plunging sales. The stakes in publishing aren’t Hollywood-level high (in 2018 Netflix announced it had lost $39 million for unreleased content “related to the societal reset around sexual harassment”), but they can be considerable: O’Reilly was earning seven-figure advances for his best-selling Killing series before his decades-long sexual harassment history came to light. In an era where publishers are still making big bets on individual writers but overall profits are strained, a single scandal can harm their bottom line, and publishers—especially big houses like Simon & Schuster, HarperCollins, and Penguin Random House— have increasingly turned to morality clauses to protect themselves.

These clauses are meant to empower publishers to easily terminate contracts without going to court. That means that they are manifestly set up to protect the publisher, not the writer. You only need to look at a morality clause’s vague language to see how wide the net is for an author’s misconduct: for example, if an author’s conduct results in “sustained, widespread public condemnation…that materially diminishes the sales potential of the work” (in the words of one publisher’s contract) or “ridicule, contempt, scorn, hatred, or censure by the general public or which is likely to materially diminish the sales of the Work” (in the words of another), a publisher can cancel a book and, in some cases, demand the return of any advance payments.

. . . .

But as much as I would like for such misconduct to have consequences, this isn’t the way to go about it. For one thing, the self-protectively vague nature of the offenses described in morality clauses means that there’s no reason to assume they will only be used to punish harassment or assault. Even more difficult to swallow is that morality clauses are triggered by allegations, not guilt. A publisher can let go of a writer who has been accused of a crime like sexual harassment or libel without there ever being formal charges, much less a conviction in court.  And the alleged misbehavior doesn’t have to have happened anytime recently.

. . . .

Penguin Random House specifies in their contract that they can fire any author whose “past or future conduct [is] inconsistent with the author’s reputation at the time this agreement is executed.” Given that publishers aren’t hurt by the actual misconduct but by the backlash that undermines book sales, it’s irrelevant to them when the deed occurred—and anything in an author’s life becomes fair game.

Because morality clauses are relatively new to publishing and agents often handle contract negotiations, some writers aren’t even aware that they’re in their contracts.

. . . .

The Authors Guild of America, which is vocally against morality clauses, points out that women and people of color, who are subject to more online trolling, are especially vulnerable and “may choose not to speak out in their own defense for fear of drawing internet fire that might result in a contract termination.” The wording of a morality clause is so vague that a publisher spooked by a coordinated online pile-on could theoretically cut and run even if the author says nothing.

Link to the rest at Electric Lit

The list of reasons not to deal with traditional publishers seems to grow longer by the day.

However, if an author is trapped in a for-life-and-beyond publishing agreement, he/she might cook up a project for her/his local writing group to create a faux event to trigger a publisher’s morality clause, then announce the hoax later.

Please note that this is an instance of black humor deriving from the ongoing debasement of authors by major publishers through increasingly unfair contract terms and PG does not recommend that any author actually try this stunt.

Although he admits, such a scheme could provide great fodder for a self-published book:

How I Ruined My Reputation Just To Get Out of

My Publishing Contract with Random House – A Black Comedy

I Categorically Deny That I Ran Naked Through the Offices of The Authors Guild!!

 

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11 Comments to “What Writers Need to Know About Morality Clauses”

  1. “Although he admits, such a scheme could provide great fodder for a self-published book:”

    Actually a writer will a ‘first option’ written into his(her? can’t remember) contract deliberately wrote such a bad and politically incorrect book that the publisher had no choice but to reject it – giving the writer their freedom. 😉

    • Actually a writer will a ‘first option’ written into his(her? can’t remember) contract deliberately wrote such a bad and politically incorrect book that the publisher had no choice but to reject it – giving the writer their freedom.

      I think that was Robert Heinlein (RAH).

      By 1958, RAH wanted out of his contract with Scribner’s. He had wearied of fighting his editor, Alice Dagliesh. With his agent, Lurton Blassingame (doncha love that name?), RAH submitted Starship Troopers to Scribner’s to fulfill his contract for a juvenile novel. Scribner’s rejection triggered a clause that released RAH from his contract. Blassingame submitted the work to Putnam and they published Troopers. It won the Hugo award.

      • Jack Chalker did something similar to get out of his first-option clause with Del Rey. Of course, since Del Rey was a lesser publisher than Scribner’s, he couldn’t get rejected just by writing something they disapproved of politically; but since Chalker was a lesser writer than Heinlein, he didn’t mind stooping to a level that they had to reject. He wrote what amounted to a science-fiction porn novel, one that could not be sanitized without leaving a book full of blank pages, and went his merry way.

  2. Indies don’t have the ‘protection’ of a publisher between themselves and their fans – we have to suffer the consequences of our actions.

    Some authors have been unhappy to find out that they triggers a troll horde, or an ‘authors behaving badly’ posse.

    I find it curious that it is an attempt by the PUBLISHER to get out of a contract with an AUTHOR. They usually have all the cards.

    • Morality clauses are publishers’ way of shifting all the blame and consequences onto authors. One way tradpub authors are like Indies: solely responsible for whatever comes down.

      It’s also tradpub saying “we’ll share the rewards but the responsibility is all yours”.

      Just one more thing to tally when choosing.

  3. Hollywood studios used such clauses as cause to fire actors and screenwriters who’d spoken out against Senator John McCarthy and his House Committee on Un-American Activities during its witch hunt for Communists.

    Oh, boy.

    It is Joe, not John.

    A Senator has nothing to do with the House of Representatives. Not in the 1950s, and not today.

    And when they’re done editing these silly errors they should circle around to the Wikipedia entry for Harry Dexter White.

    • Good points about basic errors in the OP, Patrick.

    • Patrick W, Yes, I agree that Ms Carrie Mullins is factually inaccurate, but at least she is morally right. 😉

    • And while we’re making corrections: The film star cited in the first sentence of the post was Roscoe Arbuckle — “Fatty” was the name of his character (like Chaplin’s “little tramp”). He was not merely acquitted of the charges, after two mistrials, but received a written apology from the jury (“Acquittal is not enough for Roscoe Arbuckle. We feel that a great injustice has been done him…”); the tradition of career-minded district attorneys ignoring evidence, putting publicity before justice, is not a recent invention.

  4. And there is such thing as “Nom de Plume” Get a bad rap, then change your name. No one know what you look like, unles you use an avatar.

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