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.