Clauses For Little People

Amanda over at Mad Genius Cub Ran into another of those things that legal genius’s are putting into contracts for employment or creative work. In this case it is a morality clause. Well at leas that is what the legal genius’s are calling it. What it amounts to is yet another method of the people at the top of heap to avoid having to deal with “controversy.”

Amanda is writing about this oped in the New York Times

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.

A lot of people don’t read the fine print of their employment contracts. Amanda has some good reasons why you should.

As the NYT piece notes, terms like “public condemnation” are so vague we, as authors, should run from the contract without hesitation. Such clauses are an out for publishers. It gives them reason to cancel a contract without real cause. Your sales can be meeting the contractual level to keep your book in print but, for whatever reason, they want to be done with you. Then you write a blog post that gets some negative Twitter attention. Or you say something on Twitter that has a handful of people reacting negatively. That is enough, under such vague language, for the publisher to cancel the contract.

Jeannie Suk Gersen, a Harvard Law professor and regular contributor to The New Yorker, wouldn’t sign a contract containing such a morality clause. “No person who is engaged in creative expressive activity should be signing one of these,” she told Shulevitz.

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.”

Anyone remember the anti-Sad Puppy crowd calling for Baen to fire the ILOH or Brad or Sarah? Now think about what could have happened had they been subject to such a contract clause.

And, if Conde Nast is doing it now, how long before book publishers start including such language–assuming a court doesn’t strike it down before then.

I hear some of you telling me I’m overreacting. After all, contracts can be negotiated. That means you can negotiate this clause. Right? Wrong. At least not unless you have enough clout, a big enough name, to make the publisher’s blink.

Read the rest here:

Writers, morality and the #MeToo fallout

The problem is that this  goes deeper than just  a morality clause in writing contracts. The clause is a result of a corporate attitude that treats the people that keep them in business as some sort of serfs. Does anybody remember the Bratz doll suit? That was a disaster for everybody except the lawyers.

When the hazard runs to hundreds of millions of dollars the C-suite notices and I imagine that shortly afterwards,  a little clause was put into employment contracts that said that any creative things that somebody does is essentially the property of the company even if the employee doesn’t do it on company time with company resources. At least to paraphrase it, that was what my  contract said.

The fact is that the typical corporate management did not get to where they were by being creative and productive. They  got there by  putting themselves in the right schools, making the right connections and always watching their backs. They don’t trust and the way that they react to things shows it. Mattel spent hundreds of millions of dollars fighting that stupid suit over a doll and got nothing for it. That money if spread around a bunch of designers and creative types would probably have generated another hit and enormous profits. Instead the company  decided to have the lawyers do battle.  And the rest of the companies, rather than taking the correct lesson from the example, started to put stupid clauses in the contracts.

If you are a creative, or do any kind of work that touches intellectual property at all, Amanda’s advice here fits,

This is yet another reason why you MUST read any contract a publisher or agent sends you for your work. Not only that, you MUST have an IP attorney look it over. Otherwise, I suggest you put your advance in an escrow or other interest bearing account and not touch it for the life of your contract. If you don’t and if at some point in the future, you’d better be prepared to return that advance, probably with interest, to the publisher if you were foolish enough to do or say anything that someone might have taken offense to.

The reason that the people who put these clauses into contracts do what they do is that they are afraid. They are afraid of losing, whatever that means, afraid that they might make a mistake and afraid of what  the rest of their set thinks of them. They also want everybody else to be afraid of them.




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