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Another Reason to Think Twice Before Signing

As I was looking for something to blog about this morning, I came across this post over at The Passive Voice. It seemed especially important in the wake of the events of this past weekend. The topic? Morality clauses in publishing contracts. More specifically, those clauses that allow publishers to cancel contracts based on past, present or future conduct that might damage their sales.These clauses have become common boilerplate in publishing contracts and they should bother anyone considering going with a traditional publisher.

As I read the linked post, I remembered writing on this topic earlier. So I let my fingers do the walking and found my original post. With your indulgence, I’m going to repost it here, along with updates based on Electric Lit’s post.

Writers, Morality and the #MeToo Fallout

I’ve been pondering whether to write this post for the better part of a week. I’d been hearing rumbling from traditionally published authors about a contract clause that is as evil–their words and I agree–as the rights grabbing clauses that have become common in publishing contracts. But then, several days ago, an op-ed piece appeared in the NYT and I knew what I needed to write. The clause? A morality clause. Yes, you read that right. More and more traditional publishers are now including a morality clause in their contracts.

Judith Shulevitz penned “Must Writers Be Moral? Their Contracts May Require It” last week for the Times. The basic premise is that a growing number of publishers, book publishers are well as newspaper and magazine publishers, are including morality clauses in their contracts. On the face of it, such clauses don’t appear so onerous. Except….

There’s always an exception, isn’t there?

The clause itself should send shivers down our spines.

These clauses release a company from the obligation to publish a book if, in the words of Penguin Random House, “past or future conduct of the author inconsistent with the author’s reputation at the time this agreement is executed comes to light and results in sustained, widespread public condemnation of the author that materially diminishes the sales potential of the work.”

Even though Shulevitz “guesses” that’s reasonable, I beg to differ. This clause can be used if a tweet or an image from years ago–decades ago–comes to light that the publisher believes is “inconsistent” with the author’s reputation. Then there’s the question of who determines what the reputation happens to be. Then there’s the whole question of what”sustained, widespread public condemnation. . . that materially diminishes the sales potential of the work” means.

Carrie V. Mullins, from Electric Lit, points out what should be obvious but, unfortunately, is something too many authors overlook:

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.

With the way publishers are trying to hold onto a work for the life of the copyright, this should scare all of us. It basically means as long as they continue to hold your rights, you have to worry. “Past or future conduct” is limited. You could suddenly find yourself in a Kevin Hart situation like the comic had with the Academy Awards this year. Hell, you could find yourself in an Ellen situation where she defended Hart and championed him being host for the awards show, only to find herself under attack from the perpetually butt-hurt for accepting his apology for jokes Hart made years ago.

It goes even further. In the wake of events like the shootings this past weekend, a publisher could decide your pro-Second Amendment stance is such that it is “likely to materially diminish the sales of the Work” and cancel your contract. Or if you don’t take a stance that the vocal minority on Twitter approve of and they target you, the publisher can cancel your contract. It doesn’t matter if this happens before the book is actually published or if it happens years afterward. You are the one at risk and the only way to avoid having this happen is to shutter your social media accounts, never say anything in public and pray no one overhears you telling an off-color joke or making what they consider to be a disparaging remark.

That is the sort of condemnation a publisher could use to not only cancel your contract but demand your advance back.

Yes, you read that right.

But those of you who write for magazines are facing even worse morality clauses. Although, to be honest, I expect the Big Five and other publishers to follow. After all, they do seem to move in packs when it comes to how they treat their writers.

This past year, regular contributors to Condé Nast magazines started spotting a new paragraph in their yearly contracts. It’s a doozy. If, in the company’s “sole judgment,” the clause states, the writer “becomes the subject of public disrepute, contempt, complaints or scandals,” Condé Nast can terminate the agreement. In other words, a writer need not have done anything wrong; she need only become scandalous. In the age of the Twitter mob, that could mean simply writing or saying something that offends some group of strident tweeters.

Read that again.

You don’t have to do anything wrong. All you have to do is become the target of the mob because you suffer from wrong think. Now think about the attacks people associated with Sad Puppies have undergone. If such a contract clause had been in effect in their contracts, and if the publishers had been brave enough to go up against the ILOH, Larry, Brad, Sarah and others would have found themselves out on their ears. Of course, the mob of angry fans would have been something to watch as they marched on the bastions of traditional publishing.

The thing is, we shouldn’t be surprised by this clause being found in our contracts. in 2011, Harper Collins included such a clause in a contract sent to Ursula LeGuin. Ms. LeGuin took exception to the clause and took to her blog. (You’ll need to scroll down a bit to find her letter to Rupert Murdoch.)

“It was nothing really materially damaging, only just the money and I.D. I stole from the old man with the walker and some things I said about some schoolgirls with big tits.” Please, the letter went on, don’t “make me pay back the money because I can’t because I already had to give most of it to some stupid lawyer who said I had defaulted on a loan and was behind on my child support, which is just a lie. That stupid brat was never mine.”

As the NYT piece notes, terms like “public condemnation” are so vague we, as authors, should run from the contract without hesitation. Such clauses are an out for publishers. It gives them reason to cancel a contract without real cause. Your sales can be meeting the contractual level to keep your book in print but, for whatever reason, they want to be done with you. Then you write a blog post that gets some negative Twitter attention. Or you say something on Twitter that has a handful of people reacting negatively. That is enough, under such vague language, for the publisher to cancel the contract.

Jeannie Suk Gersen, a Harvard Law professor and regular contributor to The New Yorker, wouldn’t sign a contract containing such a morality clause. “No person who is engaged in creative expressive activity should be signing one of these,” she told Shulevitz.

But when the trigger for termination could be a Twitter storm or a letter-writing campaign, she said, “I think it would have a very significant chilling effect.”

Anyone remember the anti-Sad Puppy crowd calling for Baen to fire the ILOH or Brad or Sarah? Now think about what could have happened had they been subject to such a contract clause.

And, if Conde Nast is doing it now, how long before book publishers start including such language–assuming a court doesn’t strike it down before then.

The answer to that is they are already do it and Mullins has a further warning we should all take to heart.

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.

Sounds familiar, doesn’t it. Sort of like what happened to so many actors and businessmen in the opening days of the #MeToo movement.

Now consider this, also from Mullins’ article:

And the alleged misbehavior doesn’t have to have happened anytime recently. For example, in 2017 Penguin Press dropped journalist Mark Halparin, co-author of Game Change and Double Down, after women accused him of sexually harassing them during his tenure at ABC News in the early 2000s. 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.

I hear some of you telling me I’m overreacting. After all, contracts can be negotiated. That means you can negotiate this clause. Right? Wrong. At least not unless you have enough clout, a big enough name, to make the publisher’s blink.

Masha Gessen, like Gersen, received a contract with one of those damned clauses in it. She also refused to sign. Here agent, as well as Gersen’s, managed to negotiate the language of the contract into something a bit more palatable. In Gessen’s case, the contract clause was amended to state that the morality clause can’t be invoked as the result of her professional work, important since she often writes about controversial subjects. Conde Nast had to acknowledge that she had “expressed controversial views” and that “professional work” included “public events or posts on social media in addition to her writing.”

But Gessen admitted her case, like Gersen’s, was the exception and not the rule. She knows she was able to stand up to Conde Nast because she “has clout” and she worries about lesser known writers who don’t.

The problem with letting publishers back out of contracts with noncelebrity, nonreligious, non-children’s book authors on the grounds of immorality is that immorality is a slippery concept. Publishers have little incentive to clarify what they mean by it, and the public is fickle in what it takes umbrage at.

Gawd almighty, ain’t that the truth, especially that last part?

I don’t know about you, but I want more than a nebulous, “you must be good, and we’ll decide what that means–but we don’t have to tell you–or we will cancel your contract and demand our money back.”

Here is a key:

Times change; norms change with them. Morality clauses hand the power to censor to publishers, not the government, so they don’t violate the constitutional right to free speech. But that power is still dangerous.

It gives the power of censorship to the publishers. Think about it. When they say they want to be the gatekeepers, it isn’t the gatekeepers of quality. It is the gatekeepers of point of view on issues, on what is the right way to think about things, etc. They want to “educate” us to be “better”.

Riiiight.

While I disagree with the author’s comment that this clause will have a more chilling effect on women and minority authors than it does on white males–I especially disagree in the climate of the #MeToo movement–she is right that these clauses are chilling.

As Mullins reminds us, “It’s especially hard to know what will spur public condemnation in the age of social media. On Twitter and Facebook, small incidents can quickly grow into public outrage.” And that outrage can trigger the morality clause simply because someone has accused you of being something you may or may not be. Guilt by social media and knee jerk reaction from publishers. Worse, too many authors aren’t aware of the fact such clauses are already in their contracts.

Or, as the Passive Guy says, “The list of reasons not to deal with traditional publishers seems to grow longer by the day.”

This is yet another reason why you MUST read any contract a publisher or agent sends you for your work. Not only that, you MUST have an IP attorney look it over. Otherwise, I suggest you put your advance in an escrow or other interest bearing account and not touch it for the life of your contract. If you don’t and if at some point in the future someone accuses you of something, you’d better be prepared to return that advance, probably with interest, to the publisher if you were foolish enough to do or say anything that someone might have taken offense to.

30 Comments
  1. “I hear some of you telling me I’m overreacting.”

    Not me. I’d laugh at the guy and throw his pen at him. A contract like that basically makes you, the creator, a peon. Indentured servant with zero rights, and the publisher gives you the scraps off the table. Shut up and work harder for your 2% royalty, slave.

    There are some things in this world that are simply intolerable, and this is one of them. Throw that pen at his -head-.

    August 6, 2019
  2. Luke #

    Allowing one party to break a contract at their subjective discretion is itself evil.
    Allowing one party to retroactively nullify a contract, including the return of monies for work already performed, at their subjective discretion, manages to encapsulate why executives and lawyers are so highly respected.

    August 6, 2019
    • Mary #

      In a sane world it would unquestionably be an unconscionable adhesion contract.

      August 8, 2019
  3. I can all too easily imagine someone saying, “You know, that blog piece you did about [currently harmless topic]? We’ve been cautioned that that is going to be problematic in the near future. We strongly recommend that you delete post/scrub web-site,” or “for that reason, we are canceling your contract.”

    August 6, 2019
    • They are already doing that. Agents are telling clients to scrub their social media accounts ahead of shopping around manuscripts. Employers outside of the industry (and college admission officers) are checking social media feeds before accepting an applicant. Hell, some employers even demand passwords to FB, Twitter, etc., accounts from their employees so they can keep an eye on what is being said online.

      August 7, 2019
  4. BobtheRegisterredFool #

    I love the current state of the industry, and wish for it to endure forever.

    August 6, 2019
  5. Reziac #

    And just a matter of time before a publisher manufactures outrage (easy enough to do, just drop a few anonymous remarks in the right place and let the mobs do their thing) to get rid of and suck money back out of an underperforming author who got a big advance. You could suspect, but it’d be durn hard to prove.

    “Allowing one party to break a contract at their subjective discretion is itself evil.”

    And possibly illegal, tho that seldom stops whoever has the biggest lawyers.

    Enough of the hat-in-hand approach; I suggest a different contract: You the publisher may print and distribute that there work for this here limited period, and you’ll pay me NN% of cover price for each copy distributed (note I didn’t say “wholesale price” nor “copy sold”). After that we’ll talk again. I retain all other rights. And you can either do your own damn promotion, or pay me for my time.

    August 6, 2019
    • I wish I could say that hasn’t happened, but I can’t. Knowing how some in the industry think, I can see it happening. That’s especially true given how quickly publishers have already caved to Twitter mobs in the last year or so.

      August 7, 2019
  6. Strike that bilge. Here:

    “In case of ‘violation’ of any and all ‘morality clauses’ ANY AND ALL rights instantly and IRREVOCABLY revert to the author.”

    Bet they re-think mighty goddamned quick.

    August 6, 2019
    • From what I hear, they don’t really negotiate. Its more of a “take the deal, you lucky slave.”

      Makes me pretty glad to not be dealing with them. Such people might raise the Phantom Blood Pressure to dangerous levels. The release valve doesn’t always work.

      August 6, 2019
      • I do not expect they’d go for it, but it would point out what [crappola] their [crappola] is.

        August 7, 2019
    • That is exactly what I would have done, oh wise Ox. The problem is publishers don’t let you, unless you are a best seller, change anything in the contract that might be to your favor. I’m not kidding when I say they will tell an author they can’t make the change because it is a clause in all their contracts or it is too difficult to take out the offending clause or phrase. I’ve seen it happen too many times over the years.

      August 7, 2019
  7. Christopher M. Chupik #

    They’ve made it far too easy for awful people to exert power over the rest of us. This won’t end well.

    August 6, 2019
  8. snelson134 #

    Small note for the “Amazon worshipers” who think that indie will save them from this junk:

    There’s an author, named Colin Flaherty, who’s been publishing books, factually sourced, about how the rate of crimes committed by blacks, specifically young black males, is wildly out of proportion to their percentage of the population, and how various elected officials, usually but not exclusively Democrats, have resorted to various schemes to sweep it under the rug / attribute it exclusively to racism.See Obama’s school discipline policy as an example.

    His latest book was called “Don’t Make the Black Kids Angry”; title based on a quote from a black representative. It was praised by Thomas Sowell and Alan West.

    You could buy it at Amazon. Until someone got offended at one of his podcasts and whipped up a Twitter mob. You can’t buy it there any more. You search for it… and nothing appears. It’s not on his author page. Poof. Gone.

    I suppose we should count ourselves lucky that Amazon didn’t pull the existing copies off everyone’s Kindle. Amazon already effectively practices this kind of clause; they just haven’t put it in their TOS… officially…. and they haven’t applied it to everyone…. yet.

    Sleep tight.

    August 6, 2019
    • Ah, I knew it had to come. With nothing to do with the current post, someone had to come in shitting on Amazon. No one here has said Amazon is perfect. But we can always count on you to come in with something like this.

      So here’s my response: what steps has this author taken to 1) find out why his book was removed, 2) to have it restored to the store, 3) make sure it doesn’t happen again?

      It’s funny how when so many of these stories come up, these are the questions that aren’t answered. Too many in this position would rather take to social media to bitch and moan about how evil Amazon is than to sit down and do some simple research and–duh–act like a businessman to correct the situation. Yes, it might take time but Amazon can and will respond if you act professionally, if you document everything and if you follow the chain of command. How do I know? Because I, and others like me, have been in that same situation and instead of whinging about it and doing nothing, we took steps to correct the situation.

      More often than not, there are mistakes made on both sides.

      But back to your comment. It adds nothing to the current discussion because it gives us nothing about the topic of the post. It is merely another swing at Amazon and a none-too-subtle accusation that myself and others here worship at the Amazon altar, which we don’t.

      August 7, 2019
      • Reziac #

        As I recall (it’s been a couple years), Flaherty raised a fuss, but nothing came of it; the review page is still up, but the book is gone from Amazon despite having been an Amazon #1 Best Seller (and not his first #1). This incident isn’t just someone getting their fame from being an internet whiner; he was already well established as an author, with a significant Youtube presence as well.

        https://www.amazon.com/Dont-Make-Black-Kids-Angry-ebook/product-reviews/B00U5N25XC

        The only way to not have it happen again would be to rewrite the book and omit all the facts and stats about black crime, and to never expose such facts again. And I think if you read the reviews, you’ll see why.

        The fact is that no matter how good Amazon is for most of us, being THE place to make money as an indy — it is also the new 800 pound gorilla, and if it decides it doesn’t like you… there’s very little you can do about it. There exists NO realistic competition (and if there were, Amazon would buy it) and no reason for Amazon to do anything but what they want to do, for good or ill.

        August 8, 2019
        • I will admit to not doing a lot of research but I was surprised at what little I found on a quick google search about the incident. I certainly didn’t find anything in the quick search to detail any steps he’d taken, what Amazon’s complaint was, etc. Hence that part of my response.

          But what got to me about the entire comment was the attitude of the OP. It is one we’ve seen here before from him. It was also a case of moving the goal posts. So…shrug.

          August 8, 2019
          • snelson134 #

            No, it was a clear example of the topic of the post; it was just applied to an entity that you prefer not to criticize.

            August 9, 2019
            • Once again, you love to take things in your own direction. This post was about traditional publishing. You brought in an instance without any supporting documentation, etc., and used it to deride Amazon. We get it. You don’t like Amazon. My guess, based on your history of comments here is you would like to go back to the traditional business model. That’s not going to happen.

              As for your comment that I’d prefer not to criticize Amazon, get over yourself. I’ve been one of those authors who have had books removed. I documented it here and elsewhere, along with the actions I had to take to get it returned to the sales list. So don’t start telling me what I do or don’t think or like.

              I also know Amazon is anything but perfect and have always said so. In fact, if you actually paid attention to what we say here at MGC, you’d see all of us recognize there are problems with the Amazon model and with it being the gorilla in the room. But, for the moment at least, it is the friendly gorilla, especially when compared to traditional publishing.

              What I am is tired of people condemning Amazon and not doing a damned thing to come up with a better solution. Or ignoring the problems with the other outlets, outlets that do the exact same thing Amazon does. When they do, it doesn’t get the press because they don’t impact as many authors and readers. Let’s not forget the Kobo debacle from some years ago when they decided to remove books based on their covers. Romance titles, and some suspense titles, were removed because someone decided the covers were too racy. It didn’t matter if there was no nudity involved. Several of us here at MGC were caught up in that and those books were NEVER returned to the Kobo line-up.

              So get over yourself. Get over your hatred for Amazon and get over the idea that you know what I, or any of the other bloggers here, feel about Amazon because I guaran-damn-tee you that you’re wrong. If that isn’t plain enough for you, I’ll spell it out. Amazon isn’t our friend but it isn’t as much an enemy as those publishers insisting on grabbing up copyright for life or putting morality clauses into their contracts.

              August 9, 2019
        • snelson134 #

          Thanks, Rezlac; you see the point.

          August 9, 2019
  9. Peon is exactly right. I doubt that there is much than can be said about the contempt that executive types have for those unimportant people that just happen to be the people that are the foundation of their business and make it work.
    https://hbr.org/2013/04/seven-rules-for-managing-creat
    The problems have been exacerbated by the fact that the distortion of economy have favored large offshore ownership as opposed to the medium and small businesses that publishing once was. The problem is that in a big company there is always an excuse for a failure and now real reward for the lower management that directs that creative types for a big success. Those managers know there is no benefit for taking a risk, so they don’t and every potential problem becomes “Call legal” for a solution rather than treating adults like adults.

    August 6, 2019
  10. Draven #

    didnt we hear about these months ago, if not a year ago?

    August 6, 2019
    • Yes, and? It is a situation that is only getting worse and I felt it needed to be revisited.

      August 7, 2019
  11. TRX #

    The publishers already censor by their actions as gatekeepers. What they want to do is retroactively censor after publication, to better control what their stable of writers produces.

    scenario A) is that as sales and profits fall, they plan to rescind author payments to help their bottom line (after all, there’s an essentially endless supply of wannabees willing to produce “product”)

    or

    scenario B) they fear their authors will go “off the reservation” and speak out against the Narrative.

    They’re not exclusive scenarios, of course…

    August 7, 2019
  12. I’m about due for a revision of my long-running (29 years) computer science textbook, and it’ll be interesting to see (assuming they decide to revise it) what the contract looks like. I won’t sign anything with a morality clause in it, since that’s nothing more than a loophole allowing the publisher to back out of a contract unilaterally if remorse sets in for some reason. I’ll politely ask for the verbiage to be removed, and if they won’t remove it, I’ll ask for the rights back. It’ll be interesting to see how they respond. I’ve worked with them for a long time and they’re not crazy; they also know that I’m a retired publisher and I could revise and republish it myself without a great deal of trouble. I see some very interesting conversations in my reasonably near future.

    August 8, 2019
    • BobtheRegisterredFool #

      I’d also be interested in whether they are jumping on the physical copies only rented model.

      CS is an interesting field. It can be considered a subset of engineering, or at least partly overlapping with engineering, and engineers like to buy their textbooks as a capital investment for decades into the future.

      But CS gets old so fast. On the other hand, good writing is good writing.

      August 8, 2019
    • Jeff, most definitely. I’ll be interested in hearing how it goes. I’d also be interested in knowing if they want to change to the newish model where they allow professors to pick and choose parts of the book and have the university print shop print out only those parts they want their students to use.

      August 8, 2019

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