Contracts

What to Do About Morals?

I will often get questions about the “moral turpitude” clause found in many of the contracts we receive. It’s not a description often heard in daily conversation. “Have you turpituded today?”

Many faith-based publishers have had a “moral turpitude” clause in their contracts for a long time. Moral turpitude is well defined in this post on Wikipedia. It is understood in the legal community as actions or activities that can get you fired from your job, deported if you are only in this country on a visa, or have your contract cancelled if you are an author.

Here is a typical version of the clause found in many of the contracts our agency negotiates:

MORAL TURPITUDE. In the event Author is publicly accused of an act of moral turpitude (substantiated by the preponderance of evidence, a court decision, or Author’s own admission), a violation of any Federal law or any other conduct which subjects or could be reasonably anticipated to subject Author or Publisher to public ridicule, contempt, scorn, hatred or censure, or could materially diminish the potential sales of the Work, Publisher will have the right to terminate this Agreement upon written notice to Author of the public disclosure of such conduct or alleged conduct. In the event of such termination of this Agreement, Publisher will have the right to demand from Author and receive payment within thirty (30) days of the demand, a sum equal to all advances paid to Author under terms of this Agreement that have not been recouped by Publisher prior to said termination. Upon such payment all rights granted to Publisher in the Work will terminate and vest exclusively in Author, provided that Publisher will have the right to sell or otherwise dispose of all remaining copies of the Work in any manner Publisher deems appropriate.

I do not begrudge a publisher for including this clause in a contract. It makes perfect sense. There any many cases, and a few currently pending, where a very public Christian figure has had to step down for immoral behavior. When that happens, the publisher is left holding a bag full of books and no place to sell them. (Conversely, a few agents have jokingly asked why there isn’t a moral turpitude clause that applies the same standards for the publisher!)

Recently, we did a contract with two co-authors. This moral turpitude clause had to be carefully written so that if one of the authors went off the rails the co-author would not be held liable for those actions.

The bottom line is “Don’t do bad things!” and then you won’t ever have to worry about a clause like this being misinterpreted or misapplied.

Does having such a clause create extra caution on the part of an author? I don’t think you can keep someone from doing bad things just because there is a penalty clause in a contract. It is like the issue of trying to legislate morality. I edited a book by that title many years ago: Legislating Morality: Is it Wise? Is it Legal? Is it Possible? by Norm Geisler and Frank Turek.

A professional basketball (NBA) player will still shout at a referee despite the fact they will get fined if they receive a technical foul. It doesn’t stop them. However, the threat of being ejected for their second technical does noticeably keep their tempers at bay.

The simple answer is that no I don’t think it will change an author’s behavior. But it will save publishers a penny or two some day.

Some people think a clause like this is terrible. An invasion of privacy and intrusive into the life of the author. Back in 2011 Ursula LeGuin, author of some legendary science fiction and fantasy, posted a riff satirizing the morality clause that had recently begun appearing in the HarperCollins contract. Read her satirical article called “12. A Riff on the Harper Contract” for a example of that thinking.

In the last ten years since I first wrote on this topic here, we’ve seen very public moral failures by any number of well-known people. (Athletes like Lance Armstrong, for example. Plus a number of well-known faith leaders.) The #MeToo movement brought more significant stories to light. While some may not have had books withdrawn, many have had corporate sponsorships removed.

I’m going to risk saying it again. If you dislike the morality clause in your contract, don’t do bad things and it won’t be an issue. If you don’t like the warranty or indemnifcation clauses in your contract, don’t make it an issue by writing bad things!

Leave a Comment

To Comma or Not to Comma?

by Steve Laube

I came across this entry in the Eats, Shoots & Leaves by Lynn Truss. The book is a classic on punctuation (although based on British English usage it is still a great book). Read the story below and then answer the questions in the comment section.

On his deathbed in April 1991, Graham Green corrected and signed a typed document which restricts access to his papers at Georgetown University. Or does it? The document, before correction, stated: “I, Graham Greene, grant permission to Norman Sherry, my authorised biographer, excluding any other to quote from my copyright material published or unpublished.” Being a chap who had corrected proofs all his life, Greene automatically aded a comma after “excluding any other” and died the next day without explaining what he meant by it. A great ambiguity was thereby created. Are all other researchers excluded from quoting the material? Or only other biographers?

Which do you think he meant?

What other ambiguities with commas have you seen or written with your own hand?

Why should it matter? It is just punctuation.

Is punctuation important in book contracts?

Read More

What if You Get a Book Deal on Your Own and Then Want an Agent?

One of our readers asked this via the green “Ask us a question” button.

What happens if you get a book contract before you have an agent? What if, by some miracle, an editor sees your work and wants to publish it? (1) would having a publisher interested in my work make an agent much more likely to represent me, and (2) would it be appropriate to try to find an agent at that point (when a publisher says it wants to publish you)? My fear is that querying an agent and receiving a response could take several months, but I’d need to accept a potential contract with a book publisher right away (I would think). Is it appropriate to ask the editor to speak with an agent on your behalf to speed the process?

This is a great topic but there are a few questions within the question. Let me try to break it down.

Many times have had authors approach us with contracts in hand and seeking representation (happened just last week). Of course this will get an agent’s attention immediately. But there are caveats:

a)      Who is the publisher? There is a big difference between a major company and your local independent publisher. Not all publishers are created equal (see the Preditors & Editors warnings).

Read More

Learn the Lingo

The opening scene of the Meredith Wilson musical The Music Man begins on a train, as a bunch of salesmen debate the best sales techniques. One salesman, however, insists repeatedly, “You gotta know the territory.” That applies not only to selling “the noggins, and the piggins, and the firkins,” but …

Read More

Where Is My Money?

Before I became a literary agent I had no idea how much energy this profession spent being a “collections agent.” Recently someone asked us the following questions (use the green button to the right to ask your question!):

What do you do, as an agent, when a publisher does not pay advances on royalties on time as per their legal contract?

What if a publisher is consistently late (months) saying they have cash flow problems and will pay when they can? Shouldn’t authors be able to count on getting paid the amount and on the date stated in their contract?

Is this common and is there anything that can be done or said regarding what seems to be a breach of contract?

This is an excellent series of questions. The full non-answer is “It depends.” Generally publishers are very good about making the payments according to contracted schedules. The above situation is much more dire and is a good reason to have an agent who know who to talk to inside the publishing house. There are ways to approach the situation that gets results, just remember, “Don’t Burn a Bridge.”

However, there are a few possible reasons that authors should keep in mind before getting impatient with a tardy paycheck.

Read More

How Long Does It Take to Get Published?

How much time does it take to get published?

I came to the publishing business from the retail side of the equation. The biggest adjustment was understanding how long the process takes. In retail there is instantaneous gratification. But book publishing is a process business.

There is no question the timeline varies from person to person and project to project. In the world of major publishers the diversity can be quite extreme.

Read More

Many Happy (?) Returns!

by Steve Laube

Every first-time author is confronted by the reality of “Reserves Against Returns” as part of publishing economics. It is usually a shock and elicits a phone call to their agent crying “What happened to my money?”

Did you realize that book publishing is the only “hard goods” industry where the product sold by the supplier to a vendor can be returned? This does not happen with electronics, clothing, shoes, handbags, cars, tires…you name it. If it is a durable good the vendor who buys it, owns it (which is why there are Outlet Malls – to sell the remaining inventory). Except for books. Somewhere along the line the publishers agreed to allow stores to return unsold inventory for credit. In one sense, publishers are selling their books on consignment. Bargain books are actually resold by the publisher (after getting returns or to reduce overprinted inventory) to a new specialty bargain bookseller or division of a chain (which buys the bargain books non-returnable).

Read More

Good and Bad Advice on The Writing Life

After graduation from college, I got an entry level job at a radio station, programmed with call-in talk shows. I carried out the trash, conducted regular “Frosty-runs” to Wendy’s for the news director, painted the sales office, screened callers for the shows during off-hours, took transmitter readings, got coffee for …

Read More

Morality and the Book Contract

Seven years ago I wrote a post about the morality clause in book contracts. It was met with a collective yawn. Today the landscape is a little different and I hope you will take the time to read this carefully. From Hollywood suddenly trying to find a moral compass to …

Read More

Deadlines Are Friends, Not Nemeses

When is your next deadline? What? You don’t have one? Why not? Aren’t you a writer? I know some writers create fine prose or poetry without deadlines—I just don’t know how they do it. “But,” you may protest, “I don’t have a contract yet. How can I have a deadline?” …

Read More