More on Morality Clauses

A recent NY Times Op-Ed by Judith Shulevitz raised the thorny issue of so-called “morality clauses” in recent publishing contracts, which allow publishers to terminate contracts with authors for engaging in conduct (outside their writing) deemed immoral/unprofessional/unethical.

While morality clauses have been common in entertainment industry contracts generally for many years, they’re relatively new to the publishing industry and have become prevalent largely in the wake of the #MeToo movement.

I’ve written about this issue elsewhere and have previously taken the view that morality clauses actually don’t add much to the publishers’ legal arsenal. If a publisher wants to cut ties with an author, there are other clauses in most publishing contracts that can be used to do so: for example, clauses that the work isn’t up to the publisher’s standard judged at the publisher’s sole discretion. The same is true of author-agent contracts. Whether or not they include a morality clause, most of these contracts can be terminated with a notice period by either side without giving a particular reason.

However, subsequent developments have made me rethink my previous views, and Judith Shulevitz raises some important points in her op-ed so it’s well worth a read. In terms of how worried you should be as an author, a lot depends on how the morality clause is drafted. Clauses that are drafted in vague terms and simply say something like “if you behave in an immoral manner, the publisher can terminate your arrangement” may be less problematic in practice because the standard of morality is so amorphous and difficult to prove. I mean, sure, the publisher can still threaten to cancel the contract or actually cancel it, but at least the author would have legal grounds for complaint if the clause itself is vaguely drafted.

The more problematic situation is where the standard of conduct (moral versus immoral) is vague and the publisher itself has sole discretion to decide whether the standard has been met, which is the situation Shulevitz is describing. A clause like that gives all the power to the publisher, and allows the publisher to terminate a contract on extremely vague grounds. Again, legally speaking, one could ask whether such a clause would ever be enforceable in a court of law because the standard is too vague to make much practical sense. But it’s a risk for the author, and, seriously, how many authors can afford to take a publisher to court? How many authors even want to be seen to be litigious for fear they won’t get additional work in the industry?

So while I’m still fence-sitting about how “legally enforceable” a lot of morality clauses really are, I’m increasingly convinced that they do pose potential practical risks for authors. Where you have any bargaining power at all, it’s not a bad idea to try to have the clause removed from the contract before you sign it, or at least to have the publisher clarify how it’s intended to operate.

My usual disclaimers apply to this column (as with all columns): This is not intended as formal legal advice so if you do find yourself in this situation in practice, you may want to seek the advice of an attorney.

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