In the course of examining your first publishing contract you may notice a short provision which in essence limits certain behaviors that may damage the reputation of either yourself or the company. These increasingly common provisos are officially known as “morality clauses” and primarily exist as a failsafe intended to protect the public stature of an individual or entity from actions which they are not liable for. Morality clauses allow for one or both parties to terminate the contractual agreement between them in the event of irreparable damage to one another's prominence in regard to the public eye.
While there has been some buzz lately via the #MeToo movement, Morality clauses are not avant-garde to either the publishing industry or to contractual law. In actuality, these bridling caveats have been around for a very long time. Experts seem to concur that the incident which standardized these clauses for high profile contracts occurred on September 5th, 1921, when famed silent film actor Roscoe Arbuckle allegedly raped and inadvertently caused the death of fellow thespian Virginia Rappe. Arbuckle was later vindicated for these crimes and issued an apology by the jury. Unfortunately for Roscoe, the damage had already been done. The widely publicized event destroyed his career and he died more than a decade later of an apparent heart attack on the very night he signed a contract with Warner Bros for a feature length film.
Most sizable publishing contractors today outfit their contracts with these clauses and for authors of a certain caliber, there may be no way to avoid them. Let’s talk about why publishers really have these clauses and how you can avoid the vulnerability that potential authors subject themselves to when they comply with the standard wording of these legally binding subsections.
WHY DO PUBLISHERS NEED THESE STIPULATIONS?
From a legal perspective, it makes sense to have an exit strategy for a bad deal. For publishers, nothing is worse than losing thousands of dollars because of a PR nightmare. This is the very thing that publishers are trying to avoid when vetting a potential author. Your reputation as an artist is equally important to the quality of your work when it comes to making sales. When an author does something to attract bad press it can be a serious deficit the the supporting publisher. This isn’t so much because they’ll look bad, but rather because your books don’t sell if people hate you. This can occur for a number of reasons, but notably happens when an author elicits a distastefulness from their audience after saying something controversial or participating in an activity that alters the sentiment of their supporters.
When utilized properly, a morality clause can protect both parties of a contract fairly and effectively. The largest problem with this is that large publishers use these vaguely worded clauses as an excuse the drop an author that perhaps wasn’t as profitable as they hoped. The loosely worded terms are often highly subjective in nature and open to differing interpretations. What may seem fine in your eyes may be egregious to another. For this reason, many authors feel as though morality clauses have no place in a publishing contract.
“The moral conduct of an author is not germane to the author’s fulfillment of obligations under the contract; nor should it be a basis for termination, much less returning the advance. The author’s side of the bargain is to deliver the book promised in a timely manner, not to uphold any unspecified standards of behavior.”
There’s a strong argument to be made here but like every coin, there are two sides. I agree that no advance should be returned by an author who has already received one. However, I also believe that as a publisher, my responsibility is to offer readers a positive experience and present authors with a flock of potential adherents; a function which could be promptly destabilized by the actions of my business associate. Therefore I am inclined to create an agreement that allows for dissolution of the contract under very specific circumstances. I am also a resolute proponent for the idea that an author should do the same with a publisher. For example, If a publisher signs a controversial author or blunders a public relations statement, an author may decide that the pecuniary risk is too great to continue the relationship. This type of arrangement is called a “reverse morality clause,” and I encourage every author to negotiate one into their contract if at all possible. More on that below where we discuss real strategies to protect oneself in the event that a morality clause is unavoidable.
SHOULD I SIGN A MORALITY CLAUSE?
This a deceivingly complex question because, in truth, there are several answers to this. In short, it depends. If you happen to be anything like me, you err on the side of caution. You prefer the comforts of home to a busy nightclub and are typically careful of the way you present yourself to others. For individuals like this, I’d recommend making sure that your contract outlines specific behaviors which are prohibited. When I say specific I mean specific. If a publisher demands that you can’t crack your knuckles on Wednesdays and Fridays then it needs to be in writing. Of course this is an absurd example but it services the concept well. At the end of the day it needs to be apparent that anything not specifically recorded in writing will not be enforced. This is key to having a morality clause that you can live with because in essence this clause will regulate as many of your social interactions as it can reach. If the terminology used is overly vague you substantially abdicate your social autonomy. A morality clause should be as minimally invasive as possible and non-restrictive to both parties. This assures that your relationship with a prospective publisher feels more like a friendly business relationship than an abusive dalliance. Shown below is what a sensible, appropriate morality clause looks like.
“If at any point during the life of this contract, Author is charged with a crime, Publisher reserves the right to terminate the agreement within 30 days of the date of arrest at its own discretion. Otherwise authors are free to express opinions and behave as they will. Additionally, the same will be true for Publisher.”
AVOIDING PREDATORY CLAUSES
The key to appropriately navigating moral turpitude clauses lies in the ability to negotiate your contract with a publisher. You have more power than you think! Don’t be afraid to say no to a contract you aren’t happy with. Negotiating in your own interest is ultimately a responsibility that falls on you. The contract before you is representation of a facet of your future and sets a standard for your career as an author. The above sample clause is a direct excerpt from our standard contract at Huntsville Independent, and yes; There’s still room for negotiation. Along with this, HIP is proud to offer an additional layer of security for our authors; A buyout clause that enables our authors to purchase their rights back for a book they have previously signed over to us. An ethical publisher should never take advantage of its clientele. If you were able to glean something worthwhile from this short article, share it with your friends! We hope you’ll join us next week for another piece. As always, thank you for reading. All the best to you!
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