To a layman, a book publishing contract may appear like it is written in another language, only known to lawyers. After all, publishing contracts can be pages and pages of dense paragraphs.
In the last few years, it has become popular for publishing houses to insert “morals clauses” into their contracts with authors. Morals clauses allow a publisher to cancel a book deal if an author allegedly engages in illegal, immoral or publicly condemned behavior that may negatively affect book sales. In certain cases, moral clauses require an author to pay back advances they received on book sales, in addition to cancellation of their book deal, if the moral clause is triggered.
The first morals clause dates back to 1921. Universal Pictures began inserting moral clauses into their talent agreements after Roscoe “Fatty” Arbuckle – an actor signed to a rival studio – was subject to controversy.
Arbuckle was a very popular comedic actor and had just signed a three-year deal with Paramount Studios. In the Summer of 1921, Arbuckle hosted a party in his San Francisco hotel room. Following his party, Virginia Rappe, a 26-year-old actress, was found seriously injured in Arbuckle’s hotel room, and died several days later. Arbuckle was accused of rape and manslaughter. Although Arbuckle was eventually acquitted of the charges, Arbuckle’s reputation never recovered. In direct response to this incident, attorneys who represented Universal Pictures stated, “[t]o protect our clients we have advised them to have a morality inserted in all contracts.” Universal then began inserting the morals clauses into their agreements.
Morals clauses are widely 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. Language similar to standard morals clauses are now included the collective bargaining agreements of the National Basketball Association, National Hockey League, National Football League and Major League Baseball. Some industries, however, have completely resisted the use of morals clauses. The Directors Guild of America and the Writers Guild of America have barred the insertion of morals clauses in their contracts.
Although morals clauses are a relatively new development in the literary world, they are not without controversy. The Authors Guild (the “Guild”) vehemently objects to the inclusion of morals clauses in publishing contracts. The Guild claims that most morals clauses are too subjective and ambiguous to be fair to the author. The standard morals clause gives a publisher sole discretion in determining whether any allegations are true or not and if the publishing agreement should be terminated. The Guild argues that the moral conduct of an author does not affect their ability to perform the obligations of the agreement and therefore should not be a basis for termination. Another argument is that publishers should perform due diligence before entering into an agreement with an author to ensure that the author and the author’s work align with the objectives of the publisher. Despite this opposition and controversy, morals clauses are becoming a standard provision in most publisher’s agreements.
If an author is forced to include a morals clause in their contract, there are several points that should be carefully reviewed and negotiated. First, the language should be limited in scope. The moral conduct that triggers the language should be as limited as possible. Second, the language should preclude the publisher from collecting any payments that have already been made to the author. Third, all of the rights and licenses granted to the publisher should be returned to the author. Finally, the author should push for third party review of allegations or some other objective standard to evaluate alleged conduct.
If you are an author or illustrator, there may be provisions in your contract that allow your publisher to cancel publication of your book and return advances already paid to you.
If you have any questions about how to remove this language from your publishing contract or negotiate better terms, work with a lawyer that is well-versed in publishing law. Contact a member of our team for next steps.
Contributions to this blog by Marc Ostrow.