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April 28, 2023 | Contract DraftingEntertainment

What Authors Need to Know About Morals Clauses

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Author(s)
Marc D. Ostrow

Senior Counsel

Matthew Fulton

Associate Attorney

For someone not familiar with the world of book publishing, a publishing contract can be an intimidating document.  One recent addition to many publishing contracts is the inclusion of “morals clauses,” which allow a publisher to cancel a book deal if an author is accused of engaging in illegal, immoral, or publicly condemned behavior that could negatively affect book sales.

THE ORIGIN OF MORALS CLAUSES

The origin of morals clauses can be traced back to 1921 when Universal Pictures began including them in their talent agreements after the Roscoe “Fatty” Arbuckle controversy.  Arbuckle, a comedic actor, had just signed a three-year deal with Paramount Studios when he hosted a party in his San Francisco hotel room.  Following the party, a young actress named Virginia Rappe was found seriously injured in Arbuckle’s hotel room and died several days later.  Arbuckle was accused of rape and manslaughter, and although he was eventually acquitted of the charges, his reputation never fully recovered.  In response, Universal Pictures began inserting morals clauses into their agreements to protect the studio.

THE USE OF MORALS CLAUSES IN OTHER INDUSTRIES

Today, morals clauses are commonly used in the advertising industry.  In 2005, Kate Moss’ H&M advertising agreement was terminated after she admitted to using illegal drugs.  In 2007, several brands, including Nike and Reebok, terminated their agreements with Michael Vick after he was arrested for illegal dog fighting.  Similar language to standard morals clauses is also included in the collective bargaining agreements of the National Basketball Association, National Hockey League, National Football League and Major League Baseball.  However, some industries, such as the Directors Guild of America and the Writers Guild of America, have barred the use of morals clauses in their contracts.

THE CONTROVERSY SURROUNDING MORALS CLAUSES

The inclusion of morals clauses in publishing contracts has not been universally accepted.  The Authors Guild has opposed these clauses, arguing that they are too subjective and ambiguous to be fair to the author.  The standard morals clause typically gives the publisher sole discretion in determining whether allegations are true or not and whether the publishing agreement should be terminated.  The Guild contends that an author’s moral conduct should not be a basis for termination, as it does not affect their ability to perform the obligations of the agreement.  They also argue that publishers should perform due diligence before entering into an agreement with an author to ensure that the author and their work align with the publisher’s objectives.

WHAT AUTHORS SHOULD LOOK FOR IN A MORALS CLAUSE

If a publisher insists on including a morals clause in an author’s contract, there are several key points to carefully review and negotiate.  The language should be limited in scope, with the moral conduct that triggers the clause as narrow as possible.  The language should also prevent the publisher from collecting any payments that have already been made to the author and require that all rights and licenses granted to the publisher be returned to the author.  Lastly, the author should push for third-party review of allegations or some other objective standard to evaluate alleged misconduct.

CONCLUSION

In conclusion, it is important for authors and illustrators to be aware of the potential inclusion of morals clauses in their publishing contracts.  If you are unsure or uncomfortable with the language, it is advisable to work with a lawyer well-versed in publishing law to negotiate better terms or remove the language altogether.

Photo by Jonas Jacobsson on Unsplash
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