Publicity plays a crucial role in any publishing house. Authors who accrue bad publicity are often subjected to the morality clause in their contract so that the reputation of the publishing house is not tarnished by the actions of the author. Recent developments in the entertainment industry, especially in regards to the #MeToo movement, have led to an increased focus on ethics and morality in professional, educational, and media settings. Publishing houses and agents have faced similar problems, which is where the morality clause comes into play; an increasing number of publishing houses and agents are now including these clauses in their contracts, requiring authors to comply with acceptable professional standards and providing for the possible termination of the contractual relationship if the author fails to conduct themselves appropriately.

Definition

If you are unfamiliar with the term “morality clause,” here is a definition from Wikipedia: “A moral clause within contracts that is used as a means of holding the individual or party(s) to a certain behavioral standard so as not to bring disrepute, contempt or scandal to other individual or party to the contract and their interests. It attempts to preserve a public and private image of such a party to the contract.”

Example

All morality clauses look different depending on what they cover contractually, but here is a generic example from Author’s Guild:

Publisher may terminate…if Author’s conduct evidences a lack of due regard for public conventions and morals, or Author commits a crime or any other act that will tend to bring Author into serious contempt, and such behavior would materially damage the Work’s reputation or sales.

Limitations and Benefits

There is much debate on whether or not morality clauses should be included in author contracts. Many publishers want to protect themselves from any bad publicity their authors might incur based on their beliefs, however, there are some who believe that morality clauses are inherently unethical because of the difficulty in drafting meaningful contractual clauses that explain what conduct is immoral or unacceptable other than in the vaguest terms possible. Because of this, publishers are able to terminate contracts based on what they deem to be inappropriate behavior. There is also the question of whether these clauses are necessary as a matter of law in regards to whether they add anything meaningful to what’s already in the contract.

While there are certainly limitations, there are also benefits to morality clauses. These clauses are meant to empower publishers to easily terminate contracts without having to go through a court proceeding. Publisher’s began adding morality clauses during the rise of #MeToo Movement as a way to protect victims and hold people accountable for their crimes.

Real Cases

In 2017, Simon & Schuster canceled Milo Yiannopoulos’s book contract after he made controversial comments on the topic of pedophilia. Instead of enacting the morality clause, which is harder to prove in court, Simon & Schuster claimed that the manuscript itself was unacceptable, which provided grounds for termination. This case provides some guidance about how already-existing contract clauses can be used to address situations like this, even in the absence of a morality clause.

Recently, Simon & Schuster also canceled their contract with Senator Josh Hawley of Missouri for his book, The Tyranny of Big Tech. In an Instagram post, the publisher wrote that it took this action “[a]fter witnessing the disturbing, deadly insurrection that took place on Wednesday in Washington, D.C.” Simon & Schuster went on to say, “We did not come to this decision lightly. As a publisher it will always be our mission to amplify a variety of voices and viewpoints; at the same time we take seriously our larger public responsibility as citizens, and cannot support Senator Hawley after his role in what became a dangerous threat to our democracy and freedom.”

It’s a matter of balancing two aspects in the drive for justice: the desire to protect people from being penalized for their sexuality, lifestyle, or political beliefs versus the desire to believe victims and hold people accountable for their crimes.

Are morality clauses needed in the publishing industry? As a matter of law, the answer is arguably no, but the answer can also be yes when the clause is used as a reminder that publishing is an industry whose participants should adhere to moral and ethical standards of conduct. Should authors need reminders such as these in this day and age? Theoretically no, but in practice, given the current political and cultural climate, sadly it may be a good idea.