Revisiting Morality Clauses from the US Perspective

Over the summer, concerns about morality clauses surfaced in the UK publishing industry as its literary agents started spotting them in contracts from American publishers. When we wrote about it, Nicola Solomon, chief of the UK’s Society of Authors, expressed concern, and Philip Jones at the Bookseller commented, “Social media brings with it a new way of policing authors, and their words, that publishers should resist.”

Morality clauses, in short, allow publishers to cancel book contracts if authors misbehave or damage their reputation in some way. This has become, in the publishers’ view, a necessary precaution in the era of #metoo. For one example affecting book publishing, see Anne Ursu’s piece about sexual harassment in the children’s book community.

For a thoroughly researched item on this issue (subscription required), Erin Somers of Publishers Lunch was able to obtain the boilerplate language of these morality clauses from the Big Five publishers, plus get agents’ reactions on the record. Somers shares some of the full clauses, offering a clearer picture of the situation (at least for those of us working outside the gate). Four of the Big Five publishers use some form of a morality clause in their standard contract; Macmillan so far does not. Somers takes care to emphasize that use of these clauses dates back to at least 2008. Here are the key points:

• Ideally, morality clauses are specific and set a high bar for what constitutes misconduct. For example, one publisher defines misconduct as, first, “inconsistent with the author’s reputation” at the time the contract is signed and, second, characterized by sustained and public condemnation. Misconduct must diminish the book’s sales potential. Thus, if an author has a well-known reputation of misbehaving when they sign the contract, there likely wouldn’t be a problem with this particular morality clause. Other morality clauses indicate that legal violations must occur for cancellation to proceed.
• Agents want to ensure authors aren’t obligated to repay any advance amounts. Some morality clauses expect repayment of the advance if the contract is canceled as a result of the misconduct; others do not. Understandably, agents prefer to negotiate a clause that puts the financial burden on the publisher, not the author.
• Agents’ overarching concern is that morality clauses grant too much power to the publisher and could be used as justification for backing out of a commitment that’s become problematic for any number of reasons. If the clause is narrow enough, abusing it would be difficult, but some clauses may lead to arbitrary application—e.g., the breach can happen based solely on a publisher’s judgment that the author’s behavior has harmed sales. Kristen Nelson at Nelson Literary Agency said the clause can constitute “just another ‘market change’ entry,” allowing the publisher to cancel.

Interestingly, such clauses have long been in use among Christian publishers, and Christian agent Steve Laube told Publishers Lunch that, as long as those clauses are specific, agents and authors may not have much to fear. “I’ve never had a case where the publisher used the Moral Turpitude clause in an arbitrary way,” he said.

Bottom line: The Authors Guild has suggested that all clauses offer concrete terms that limit misconduct to illegal behavior that rises to the level of a felony (parking tickets wouldn’t count), that is morally reprehensible, and that becomes widely known to the public. Fortunately, at least as reported by Publishers Lunch, agents have been successful in negotiating more specificity on a case-by-case basis and avoiding broad boilerplate language.