When you see publishers and authors chatting chummily at book parties, you’re likely to think that they’re on the same side — the side of great literature and the free flow of ideas.
In reality, their interests are at odds. Publishers are marketers. They don’t like scandals that might threaten their bottom line — or the bottom lines of the multinational media conglomerates of which most form a small part. Authors are people, often flawed. Sometimes they behave badly. How, for instance, should publishers deal with the #MeToo era, when accusations of sexual impropriety can lead to books being pulled from shelves and syllabuses, as happened last year with the novelists Junot Díaz and Sherman Alexie?
One answer is the increasingly widespread “morality clause.” Over the past few years, Simon & Schuster, HarperCollins and Penguin Random House have added such clauses to their standard book contracts. I’ve heard that Hachette Book Group is debating putting one in its trade book contracts, though the publisher wouldn’t confirm it. These clauses release a company from the obligation to publish a book if, in the words of Penguin Random House, “past or future conduct of the author inconsistent with the author’s reputation at the time this agreement is executed comes to light and results in sustained, widespread public condemnation of the author that materially diminishes the sales potential of the work.”
That’s reasonable, I guess. Penguin, to its credit, doesn’t ask authors to return their advances. But other publishers do, and some are even more hard-nosed.
This past year, regular contributors to Condé Nast magazines started spotting a new paragraph in their yearly contracts. It’s a doozy. If, in the company’s “sole judgment,” the clause states, the writer “becomes the subject of public disrepute, contempt, complaints or scandals,” Condé Nast can terminate the agreement. In other words, a writer need not have done anything wrong; she need only become scandalous. In the age of the Twitter mob, that could mean simply writing or saying something that offends some group of strident tweeters.
Agents hate morality clauses because terms like “public condemnation” are vague and open to abuse, especially if a publisher is looking for an excuse to back out of its contractual obligations. When I asked writers about morality clauses, on the other hand, most of them had no idea what I was talking about. You’d be surprised at how many don’t read the small print. (...)
Jeannie Suk Gersen, a Harvard Law School professor who writes regularly for The New Yorker, a Condé Nast magazine, read the small print, too, and thought: “No way. I’m not signing that.” Ms. Gersen, an expert in the laws regulating sexuality, often takes stands that may offend the magazine’s liberal readers, as when she defended Education Secretary Betsy DeVos’s rollback of Obama-era rules on campus sexual-assault accusations. When I called Ms. Gersen in November, she said, “No person who is engaged in creative expressive activity should be signing one of these.”
It’s not that a company should have to keep on staff a murderer or rapist, she added. But when the trigger for termination could be a Twitter storm or a letter-writing campaign, she said, “I think it would have a very significant chilling effect.”
Masha Gessen, another New Yorker writer, also said she wouldn’t sign her new contract, at least not as it was originally worded. Ms. Gessen, a Russian-American journalist who won the 2017 National Book Award for “The Future Is History,” about the return of totalitarianism in post-Communist Russia, has spent her career challenging prevailing nostrums.
Last year, as prominent men fell like bowling pins after being accused of sexual misconduct, Ms. Gessen published columns on the New Yorker website describing the #MeToo movement as an out-of-control “moral panic” bent on policing sexual behavior by mob justice. Needless to say, many readers did not agree.
“I’m extremely uncomfortable with it,” Ms. Gessen said about the contract, “because I have in the past been vilified on social media.” Having once been fired from a job as the director of Radio Liberty in Russia after what she called a disinformation campaign, she added, “I know what it’s like to lose institutional support when you most need it.” (...)
Morality clauses may be relatively new to mainstream publishing, but they have a long history. The entertainment industry started drafting them in 1921, when the silent-movie star Fatty Arbuckle, who had just signed a then-astonishing $1 million contract with Paramount Pictures, was accused of the rape and manslaughter of a girl at a party. Mr. Arbuckle was acquitted after two mistrials, but by then the public had soured on him, and the studios wanted out.
Today the clauses are widespread in sports, television and advertising. Religious publishers have used them for at least 15 years, which seems fair enough. You can’t condemn a Christian publisher that cancels publication of a book called “The Ridiculously Good Marriage” after the author is accused of having sexually assaulted an underage girl when he was a youth pastor. (He apologized for a “sexual incident.”) Children’s publishers have been including the clauses for a decade or more, and they, too, have a case. It would be challenging to sell a children’s book written by a pedophile. (...)
The problem with letting publishers back out of contracts with noncelebrity, nonreligious, non-children’s book authors on the grounds of immorality is that immorality is a slippery concept. Publishers have little incentive to clarify what they mean by it, and the public is fickle in what it takes umbrage at.
In reality, their interests are at odds. Publishers are marketers. They don’t like scandals that might threaten their bottom line — or the bottom lines of the multinational media conglomerates of which most form a small part. Authors are people, often flawed. Sometimes they behave badly. How, for instance, should publishers deal with the #MeToo era, when accusations of sexual impropriety can lead to books being pulled from shelves and syllabuses, as happened last year with the novelists Junot Díaz and Sherman Alexie?
One answer is the increasingly widespread “morality clause.” Over the past few years, Simon & Schuster, HarperCollins and Penguin Random House have added such clauses to their standard book contracts. I’ve heard that Hachette Book Group is debating putting one in its trade book contracts, though the publisher wouldn’t confirm it. These clauses release a company from the obligation to publish a book if, in the words of Penguin Random House, “past or future conduct of the author inconsistent with the author’s reputation at the time this agreement is executed comes to light and results in sustained, widespread public condemnation of the author that materially diminishes the sales potential of the work.”That’s reasonable, I guess. Penguin, to its credit, doesn’t ask authors to return their advances. But other publishers do, and some are even more hard-nosed.
This past year, regular contributors to Condé Nast magazines started spotting a new paragraph in their yearly contracts. It’s a doozy. If, in the company’s “sole judgment,” the clause states, the writer “becomes the subject of public disrepute, contempt, complaints or scandals,” Condé Nast can terminate the agreement. In other words, a writer need not have done anything wrong; she need only become scandalous. In the age of the Twitter mob, that could mean simply writing or saying something that offends some group of strident tweeters.
Agents hate morality clauses because terms like “public condemnation” are vague and open to abuse, especially if a publisher is looking for an excuse to back out of its contractual obligations. When I asked writers about morality clauses, on the other hand, most of them had no idea what I was talking about. You’d be surprised at how many don’t read the small print. (...)
Jeannie Suk Gersen, a Harvard Law School professor who writes regularly for The New Yorker, a Condé Nast magazine, read the small print, too, and thought: “No way. I’m not signing that.” Ms. Gersen, an expert in the laws regulating sexuality, often takes stands that may offend the magazine’s liberal readers, as when she defended Education Secretary Betsy DeVos’s rollback of Obama-era rules on campus sexual-assault accusations. When I called Ms. Gersen in November, she said, “No person who is engaged in creative expressive activity should be signing one of these.”
It’s not that a company should have to keep on staff a murderer or rapist, she added. But when the trigger for termination could be a Twitter storm or a letter-writing campaign, she said, “I think it would have a very significant chilling effect.”
Masha Gessen, another New Yorker writer, also said she wouldn’t sign her new contract, at least not as it was originally worded. Ms. Gessen, a Russian-American journalist who won the 2017 National Book Award for “The Future Is History,” about the return of totalitarianism in post-Communist Russia, has spent her career challenging prevailing nostrums.
Last year, as prominent men fell like bowling pins after being accused of sexual misconduct, Ms. Gessen published columns on the New Yorker website describing the #MeToo movement as an out-of-control “moral panic” bent on policing sexual behavior by mob justice. Needless to say, many readers did not agree.
“I’m extremely uncomfortable with it,” Ms. Gessen said about the contract, “because I have in the past been vilified on social media.” Having once been fired from a job as the director of Radio Liberty in Russia after what she called a disinformation campaign, she added, “I know what it’s like to lose institutional support when you most need it.” (...)
Morality clauses may be relatively new to mainstream publishing, but they have a long history. The entertainment industry started drafting them in 1921, when the silent-movie star Fatty Arbuckle, who had just signed a then-astonishing $1 million contract with Paramount Pictures, was accused of the rape and manslaughter of a girl at a party. Mr. Arbuckle was acquitted after two mistrials, but by then the public had soured on him, and the studios wanted out.
Today the clauses are widespread in sports, television and advertising. Religious publishers have used them for at least 15 years, which seems fair enough. You can’t condemn a Christian publisher that cancels publication of a book called “The Ridiculously Good Marriage” after the author is accused of having sexually assaulted an underage girl when he was a youth pastor. (He apologized for a “sexual incident.”) Children’s publishers have been including the clauses for a decade or more, and they, too, have a case. It would be challenging to sell a children’s book written by a pedophile. (...)
The problem with letting publishers back out of contracts with noncelebrity, nonreligious, non-children’s book authors on the grounds of immorality is that immorality is a slippery concept. Publishers have little incentive to clarify what they mean by it, and the public is fickle in what it takes umbrage at.
