Summer is over (sigh). Editing is done (woohoo). Back to blogging business.
Morality clauses–you might have heard of these power-packed contract provisions. In the wake of the #MeToo movement, morality clauses have surged in publishing contracts. Or maybe morality clauses have always been there, but due to the recent wave of scandals rocking Hollywood and the literary world, we are more aware of the provision and the ramifications. Regardless, if you find a morality clause in your publishing contract, here are a few points to consider before signing.
What is a morality clause?
Morality clauses have been around for over a century in Hollywood. Movie studios used contract language to fire talent whose personal exploits damaged studio reputations. In more recent decades, morality clauses have become prevalent in the publishing world, especially with faith-based publishers. The term has various aliases, like a Moral Turpitude Clause or Termination Clause. Some have even dubbed the morality clause as the “keep your pants on” provision.
In general, morality contract provisions center on moral turpitude, a legal term that means any inherently base, vile, or depraved action contrary to social standards of morality and done with a reckless, malicious, or evil intent. Moral turpitude is a broad and subjective term that usually includes offenses such as murder, voluntary manslaughter, kidnapping, robbery, and assault. Acts of moral turpitude can result in criminal convictions or deportation for foreigners, and as applied to the contract world, can be grounds for firing and contract termination.
Morality clause contract language
Typical morality clause verbiage usually allows publishers to terminate a contract when:
- an author’s conduct evidences a lack of due regard for public conventions and morals, or
- an author commits a crime or any other act that will bring the author into serious contempt, scorn, or hatred, and
- such behavior would materially damage the publisher’s reputation or diminish sales of the author’s book.
Basically, any behavior by the author is grounds for termination if the behavior breaks the law or shocks, insults, and offends the community and public morals or brings the author into public disrepute, contempt, scorn, or ridicule. Most morality clauses provide for the termination of the publisher’s rights in the work. Those rights will revert to the author. An author can be required to pay back all or a portion of the advance not recouped at the time of termination.
Why add morality clauses to a publishing contract?
For publishers, morality clauses are mechanisms to withdraw from a project if the author’s behavior makes a book unsalable. Often publishers use it to distance themselves from unsavory acts that reflect poorly on the publisher’s image. Just like in Hollywood where it is difficult to separate an actor from their real-world problems, authors have the same problem.
By including such provisions in a publishing contract, publishers can police their author’s actions and force them to tow the line or pay the fine. Either comply with professional standards or suffer contract termination. Failing to conduct oneself appropriately covers not only sexual harassment but racism, misogyny, or anything said or done in public that bucks social norms (like Milo Yiannopoulos’ controversial comments about pedophilia that led Simon & Schuster to cancel his book contract).
Reputation matters. And in today’s era where the growth of social media allows wide and quick publicity of once private information, morality clauses seem appropriate. Bottom line is really the key. Sales matter. If scandalous behavior or criminal accusations sell a book, undoubtedly the morality clause won’t be invoked. Same if the author acts appropriately in his personal life. Even so, there are several limitations to these clauses.
Limitations of morality clauses
The biggest problem is that most morality clauses are broad. Why? Because it is hard to draft language that explains what conduct is considered immoral or unacceptable.
Another issue is subjectivity. Often the contract language allows the publisher to decide when an author’s behavior is damaging. This gives publishers the ability to pass judgment when an author has not been convicted of any crime or wrongdoing but acts in ways the publisher might not morally agree with or because they are simply bowing to media pressure to terminate an author’s contract.
This gives publishers too much power. Plus, there are many unanswered questions to consider. What standards are such morally questionable acts measured? Can one individual determine what actions are appropriate? Should publishers be able to cancel a contract based on the whim of one individual within the publishing company who does not agree with the author’s actions?
Points to consider when negotiating morality clauses
To ensure a morality clause is not broad and subjective, the contract language must be properly drafted. What defines morality can be hard to pinpoint because morality is always in a state of flux. Morality standards change based on community standards and how society grows and develops. For that reason, consider the following questions when negotiating a morality clause:
- What transgressions trigger termination?
- If possible, limit the clause to actions that are crimes, felonies, or convictions versus accusations or actions that might be ridiculed due to current moral sentiment
- The language should not be drafted so the scope of behavior prohibited goes beyond:
- obeying the law
- requiring authors to refrain from behavior that shocks, insults, and offends the community and public morals and decency
- acts that bring the author into public disrepute, contempt, scorn, and ridicule
- acts that reflect unfavorably upon the publisher
- Can the immoral act be an alleged violation, even if it turns out to be false?
- If so, then a publishing contract could be terminated for an accusation or criminal arrest that later turns out to be false or dropped
- Is the immoral act in question pre-contract signing or post-contract signing?
- If possible, limit the morality clause to conduct occurring during the contract period. Eliminate language that would include past conduct that might be publicized during the contract term
- Who decides what acts qualify for termination?
- A publisher should not have the ability to make unilateral determinations for what immoral actions qualify for termination
- A fair approach would be to trigger morality clauses from actions determined to be immoral by arbitration or judicial proceeding
- What is the level of collateral damage to the publisher if a contract must be terminated for immoral actions by the author?
- Maybe an advance should be paid back, but certainly not indemnification for reputational damage whatever that might include
While authors might not need morality clauses as reminders to adhere to moral behavior standards, the current shifting cultural climate suggests morality clauses will be the norm. If you find a morality clause in your contract, read it carefully. If the clause is unnecessarily broad, negotiate.
Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.