Morality Clauses: Should publishers 'police' writers' behaviour?

The biggest issue for me is how is this defined? Who decides which behaviours "bring an author into serious contempt?" If we take the recent case of the baker who refused to make a cake for a gay couple, some people thought the baker was immoral and showed behaviour deserving serious contempt. Others thought exactly the same about the gay couple. If that baker had a cookbook out, would sales have increased, decreased, or stayed the same? Which individual in the publishing house would decide if the baker was on the right or wrong side of morality in that situation?

In principle, I do think businesses should be able to sever ties with companies or individuals which bring them into disrepute. But I wouldn't want to be the one responsible for defining such behaviour...

As a privacy advocate, I find such clauses objectionable in their entirety. Characteristically vague, prone to subjective interpretation, and inherently invasive, I would never agree to any such contractual terms. Refusal to negotiate the removal of any such terms would absolutely be a contract deal-killer.

Publishers serve as vehicles for manufacturing and distribution of product (the book). Writers can go anywhere willing to work with them for these services. If a publisher wants to end business with an author, they should have the right to do so if it may bring any harm to their operation. I understand publishers, before signing someone, visit the author's social media accounts to learn of their professionalism or lack thereof. This is a good indicator, to writers, that publishers who go this far do not want relationships with authors into questionable behaviors.

Publishers have to protect more than their investments. Reputation and readership (i.e. revenue streams) are at stake. Relationships with other companies are at stake.

Behavior clauses are a form of asset management. Authors are assets to publishers. If authors do not agree with the terms of their contracts, there are other publishers to work with, assuming their product is desired.

This is why it's so important for authors (OK, anybody actually) to actually read the contracts they are signing. You can very well find yourself agreeing to things you don't or can't live up to. As far as "policing behavior", there are lots of contracts for people in the public eye that have morality clauses-Musicians, Athletes, Actors, TV personalities (like news people), high level business people, etc. And they are perfectly legal. Nobody is forcing you to sign anything. If you don't want a morality clause in your contract, you are free to either negotiate it out, or not sign it. The US Government, at least, has shown a distinct distaste for trying to mandate or limit what is put into a business contract, and most states follow that lead. There are some exceptions, like the truth in lending act, which mandates certain language or warnings be placed into a contract for lending, especially home loans, but that's a whole different kettle of fish from what we are talking about.
To your specific questions:
1: Absolutely. You are an adult who signed an agreement to not do XXYY and you did. (I myself, would ask for language somewhat more specific that that posted above, but that's just me.)
2: I would insist on it. Contracts should never be open ended or affected by things that occurred previous to the contract being signed.
3: Far reaching? How about you sign an open ended morality clause, fall on hard time ten years later, rob a bank and lose all rights to your work? Then you die in jail, and suddenly your books are re-discovered and become popular-but you violated your morality clause, sorry. Your heirs are going to have to go to court to try and get your work back. (this is an extreme example, but you see my point) Or you sign one that does not specify a time period and it comes out later that you have a conviction for drug possession from 20 years ago. BAM! Sorry, clause violated.

It's so very important to read and understand what you are signing when dealing with contracts. It's the number two way you can get jammed up in the business world (number one is financial ignorance). Always read all of it. Everything is negotiable. Beware the words "it's just standard boilerplate" or "this is just industry standard language". Read it, know what it means, what both your responsibilities and theirs are. If you don't understand it (and who does, except attorneys?), get professional help. Ask questions. The court will not accept "I didn't understand what I was signing" as a valid reason to set aside the terms of your contract.

Well, this doesn't seem to be about the books, but the author's morality that is being policed, so I imagine a couple of bestsellers by some dubious characters would end this pretty quickly. Or, a lawsuit by one of the bigger writer's organizations.

Most people don't really know/care that much about writers. Unless there's a front page scandal, the public response would be a big "Who?"
Look at various scifi/fantasy writers who have engaged in creepy, unpleasant, illegal activities that are only known in limited fan circles. Look at the 'memoir' writers who have lied about their lives. Plagiarists, etc. Writers who are famed for drinking like fish and engaging in fights. Heck, twitter wars. 'Bad behavior' is rampant.

And, it's not about books, because there are lots of very popular books that are sexy, sleazy, celebrate criminality, etc.


No, the 'morality' clause is about convention, morals and contempt. No mention of actual criminal conviction, which would be a clearly defined line.
This is about policing authors' private lives, by some vague standards that the publisher can't even specify.
At one time, inter-racial marriage would have been one. Heck, being an author of colour would have subjected one to scrutiny.
Now, I suppose it would be LGBT, or having political opinions.
I don't imagine pre-marital sex would count any more, but who knows what a publisher might deem 'unseemly'?

This is ridiculous, and I hope the negative responses will shut this crap down.

frimble3 said:

This is ridiculous, and I hope the negative responses will shut this crap down.

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My former agent told me once that "nobody" signs a boilerplate contract. I have to wonder how hard the publisher would cling to this clause if the author wanted it struck.

IMHO a good contract should have escape clauses for both parties. For example: as an author, I should be able to walk away until they actually publish the book - but under those circumstances, I'd expect to pay back the advance (and maybe other expenses, which should be outlined in the contract). Similarly, if my publisher changes their mind about dealing with me for any reason, fine - but if I've met my deliverables in good faith, I should keep any advance money.

My first reaction was that someone's included this because they'd love to be able to get some money back from the next bestselling author who turns out to be a harassing sh****g. My second is that the clause as stated is that it's stupid because it's a) poorly-defined and therefore likely unenforceable; and b) completely unnecessary.

ETA: Here's a larger quote from the article:

Morality, or morals, contracts have existed in the film industry since 1921, when Universal Pictures introduced them in response to Fatty Arbuckle’s trial for manslaughter, but they are relatively new in the publishing industry. One such clause, introduced by HarperCollins in the US, stipulated that the publisher could terminate a contract in cases of “conduct [that] evidences a lack of due regard for public conventions and morals”, or in the case of a “crime or any other act that will tend to bring the Author into serious contempt, and such behaviour would materially damage the Work’s reputation or sales”.

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It's not at all clear that this phrase or any other like it is present in current contracts from HarperCollins (there's nothing remotely like it in mine).

Caroline Michel, a leading literary agent, said this week that the use of morality clauses had doubled in the US over the past year. In a recent speech, Royal Society of Literature president Marina Warner warned that “being good” should not be conflated with “good writing”. But where is that line drawn?

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"doubled" from what?

I suppose I'm enough of a capitalist to believe that no publisher is going to sever ties with an author who's selling for them. (I hate the reference to Yiannopoulis in this article, btw. AFAIK what happened to him didn't have anything to do with morals; S&S was well aware of his morals when they signed him. AFAIK, the problem was he didn't deliver an acceptable MS.) The best way to punish a badly-behaving author is for people to stop buying their work.

Ari Meermans said:

That was my gut reaction, as well. Suppose, though, these clauses become standard in publishing and it becomes a matter of "publish or perish", as is often the situation in academia? Stretch that out to self-publishing outlets such as Amazon (not really all that far-fetched in today's climate), what effect then on refusal to accept a morality clause?


(See, I worry about such things.)

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Ari, try not to worry so much . . . Okay, if you extrapolate the concept to the point wherein such moral constraints are pervasive, as in contractual boilerplate (publish or perish - no other options, even in self-pub outlets), I'd still opt out. Of course, that's just me. I don't write to pay the bills; money doesn't motivate me. I do it because it's fun; I love the creativity.

IMHO, in the final analysis, almost everything related to commercial publishing is about money. From a publisher's perspective, anything that can potentially inhibit cash flow must be controlled to the extent possible. I get that; it make sense from that perspective.

However, since money does not motivate me, I'm not inclined to acquiesce to some arbitrary, subjective, and no doubt constraining code of morality as dictated by the vagaries of public sentiment of the moment and solely interpreted to the benefit of corporate accounts receivable.

Is this not the direct result of disclosures that certain people in the public eye have been accused with strong supporting evidence of physical and sexual abuse of women?

Aren't these publishers just looking for a means to end a contract should an author turn out to be an abuser?

What am I missing?

Ari Meermans said:

This is a weighty, multi-faceted issue.

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True.

MaeZe said:

Is this not the direct result of disclosures that certain people in the public eye have been accused with strong supporting evidence of physical and sexual abuse of women?

Aren't these publishers just looking for a means to end a contract should an author turn out to be an abuser?

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Also true, as far as I can tell. Which is why I'm not ready to feel incensed just yet.

MaeZe said:

Is this not the direct result of disclosures that certain people in the public eye have been accused with strong supporting evidence of physical and sexual abuse of women?

Aren't these publishers just looking for a means to end a contract should an author turn out to be an abuser?

What am I missing?

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Given how the world is looking these days, I'm suspecting people are concerned about the currently regressive common usage of words like "morality."

But whether that's something to worry about is hard to say without an actual example. Based on my own data point of one, the publisher already has the means to end a contract for whatever reason they want. (Frankly, if they don't, they need to get a new legal department.) It may, however, cost them actual money to do it, and I'm sure they'd rather it didn't.

I have no doubt there are bad contracts out there, and this might be yet another way bad contracts are being written. But I'd want a real-life example before I drew too many conclusions.

MaeZe said:

Is this not the direct result of disclosures that certain people in the public eye have been accused with strong supporting evidence of physical and sexual abuse of women?

Aren't these publishers just looking for a means to end a contract should an author turn out to be an abuser?

What am I missing?

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That's how I take it too. Wasn't it Maze Runner author James Dashner who got recently dropped by his agent and UK publisher because of allegations of sexual harassment. I imagine that's the kind of behaviour they want to protect themselves from rather than you shouldn't smoke weed we find it immoral. But again it goes back to the question, where do you draw the line?

Morality clauses in school contracts (including college and university), film, theater and TV contracts have historically been used to fire people for being queer.

They need to be fairly narrow, I think, or they invite abuse.

Morality clauses are an issue in UK publishing as well.

Ari Meermans said:

<snip.

No, it's more of a watchfulness over the changing landscape and a concern for emerging writers who don't take the time to understand the business side of writing and the implications to entire writing careers of not doing so. </snip>

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Applause! No, seriously, standing ovation! Too many aspiring writers want to be "artists" who "have people who handle that sort of thing for them". As a writer, you are an artist-but you'd also better have at least a handshaking acquaintance with business.

AW Admin said:

Morality clauses in school contracts (including college and university), film, theater and TV contracts have historically been used to fire people for being queer.

They need to be fairly narrow, I think, or they invite abuse.

Morality clauses are an issue in UK publishing as well.

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True enough, and also going back in history they've been used for things like extramarital affairs, Teachers (especially college level) getting involved with students, and ?I think? some of the Red Scare stuff in the 1950's.
The wide-open-to-interpretation vague clauses we are talking about practically beg for abuse.

Elle. said:

That's how I take it too. Wasn't it Maze Runner author James Dashner who got recently dropped by his agent and UK publisher because of allegations of sexual harassment. I imagine that's the kind of behaviour they want to protect themselves from rather than you shouldn't smoke weed we find it immoral. But again it goes back to the question, where do you draw the line?

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It's all in the interpretation, and that's the problem. Personally, I'd nope right out of a contract with a morality clause. If they want to dump me because I don't deliver on time, or they change their minds for some reason, I don't mind having all that written down (including how much money I get to keep if they randomly decide they don't love me anymore). But despite how vague some legalese can be, a word like "morality" is way too squishy for me to want it in a binding contract.

Ari Meermans said:

Did you read the article? Yes, sexual misconduct is a large part (probably the larger part) of it but much of it is spurred also by allegations of bullying, of "offensive" opinions (Milo Yiannopoulos), of mentoring practices meant to harm, and the like.

This is not an easy issue; it's highly dependent on societal mores and how far the publishing world might eventually be inclined to take their oversight of private lives. It seems important to me that writers at least consider how to negotiate for less open-ended clauses, clear definitions, and have a strong commitment to what should or should not be included in a morality clause they're willing to agree to.

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I did read the article and I read where they merely listed "sexual misconduct" as one potential issue. But in reality, except for trouble with people like Yiannopoulos who drew crowds that incited violence on his speaking tours, what else from that list has been an issue?

I just don't see publishers concerned about that many types of authors' behaviors. I do see them wanting an out for an author that earns serious public shame. The broader list seems to be an effort to cover potential future bases.

Would you agree with a publisher dumping a sexual or domestic abuser?

By the way, I do agree with your encouragement of authors taking a close look at such clauses and getting them changed when they need to be.

I am specifically concerned about morality clauses and people who are not straight or cis-gendered or who otherwise depart from the Christian right world view.

It is legal to fire someone for being queer or trans in a number of states, to refuse to rent to them (though many states, 17, I think, explicitly forbid landlords from discriminating on the basis of LGBT).

But there is reason to worry for Queer Writers in the Age of Donald Trump

I do agree Ari. It is easy to think McCarthy will never happen again. Yet here we are with the fires of bigotry being stoked in a large section of the population.

“crime or any other act that will tend to bring the Author into serious contempt, and such behaviour would materially damage the Work’s reputation or sales”.

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This is what feels closest to the truth of why such clauses would get slipped in. If the author derails the money train, the publisher wants out of the contract.

So it's not really an attempt to police writer behaviour; it's an escape hatch for the publisher should they find themselves locked up with an author who has rendered themselves unprofitable.