Tag s | Contracts

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 corporations trying to define bad behavior, the issue has become the latest buzzing conversation.

The issue is not one to be dismissed lightly. Sinful behavior, in any form, is deadly to the soul (Romans 6:23). This blog is not an attempt to discuss the overall issue or try to define the differences between sexual abuse, sexual harassment, or inappropriate/rude behavior. Instead I’d like to focus on how publishers have addressed the issue in their book contracts.

While the general market is struggling to find a moral standard, the Christian community has long had mechanisms in place to address many of these things. Even the “Pence Rule” is nothing new.

When it comes to book contracts many faith-based publishers have included a “Moral Turpitude” clause for decades. In case you don’t know what “Moral Turpitude” means, it 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 a foreigner in the U.S. 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 are many cases 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. While I was preparing this post Bethany House Publishers (a division of the Baker Publishing Group) canceled the contract of an author and his forthcoming books after it was revealed that the author had a sexual encounter with a teenage girl 20 years ago. If you read the above clause again you’ll note that the first sentence could very well have been applied by the publisher to address this tragic situation.

If you are about to sign a contract with this clause, read it closely. For example, I once negotiated a contract with two co-authors. This moral turpitude clause had to be carefully written so that if one of them went off the rails the other writer would be protected and not be held liable for the actions of the offending writer.

Not everyone is in agreement regarding the use of the clause. Years ago, Richard Curtis, agent extraordinaire, expressed surprise at a morality clause that had begun to appear in contracts from HarperCollins. [Warning: there is Adult/crude content both in his post and the comments.] In response to Richard Curtis, Ursula LeGuin, author of some legendary science fiction and fantasy, posted a riff satirizing the morality clause in book contracts. (see #12 on this page.) In light of recent events, they may not write the same thing today.

Note that for many years most product endorsement contracts include a morals clause. One article called it the “Keep Your Pants On” clause. The morals clause was there to protect a company from their celebrity spokesperson being caught doing bad things and hurting the company brand. The article cited the well documented behavior issues of Charlie Sheen and Tiger Woods as examples. Today there are a lot more public examples to choose from.

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 to you. Seriously, it is as simple as the admonition to treat one another with respect and honor. Inappropriate behavior is never okay.

In case you are interested, the New York University Journal of Intellectual Property and Entertainment Law has a brilliant and exhaustive 35 page article published in 2015 on the history of the morals clause and what it means for today.

[Some of the above was repeated from my post of January 19, 2011 for the sake of simplicity.]

 

 

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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?” …

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Writers Learn to Wait

Ours is a process industry. Good publishing takes time. Unfortunately time is another word for “waiting.” No one really likes to wait for anything. Our instant society (everything from Twitter to a drive-thru burger) is training us to want things to happen faster. Awhile ago I wrote about how long it takes to get published which gave an honest appraisal of the time involved. Below are some of the things for which a writer must learn to wait.

Waiting for the Agent

We try our best to reply to submissions within 6-8 weeks and are relatively good about that. But if your project passes the first review stage and we are now reviewing your entire manuscript remember that reading a full manuscript is much more demanding than reading a few short proposals.

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Defusing Contract Landmines

by Steve Laube

During the last six months we have run into some landmines buried within some small press contracts. In each case it was the author’s relationship with the publisher that helped land the offer, and so we proceeded to review the paperwork in order to protect the author’s interests.

In one case the small publisher was very grateful for our negotiations and contract changes. They plan to change their contract for all authors in the future. We were glad to help our client form that new partnership.

In two cases the publisher said they could not afford to hire a lawyer to review our requested changes to the contract and thus were unwilling to negotiate. We recommended the author walk away both times.

In yet another case the publisher wouldn’t negotiate and said, in essence, “take it or leave it.” We walked away. Our client terminated their relationship with us and signed the deal on their own.

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I is for Indemnification

by Steve Laube

Publishing is not without risks. Plagiarism, fraud, and libel by an author are real possibilities. Thus within a book contract is a legal clause called indemnification inserted to protect the publisher from your antics.

The indemnification clause, in essence, says that if someone sues your publisher because of your book, claiming something like libel (defamation) or plagiarism etc., your publisher can make you pay the fees to compensate for their losses. This is to “indemnify” which is defined as “to compensate (someone) for harm or loss.” Bottom line: The publisher has the right to hire its own attorneys (at the author’s expense) to defend against these claims.

Doesn’t sound like a happy clause does it? But you can understand why it is there. This clause and the Warranty clause are notoriously difficult to negotiate. (The Warranty clause is where the things the author guarantees or warrants are listed; i.e. the book is original, it is not libelous in content, etc. This clause will be more fully covered by me at another time) The language has been written by the publisher’s attorneys and are usually set in stone.

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D is for Dispute Resolution

by Steve Laube

Pray that it never happens to you. But if there is a situation where you find yourself in a legal battle with your publisher regarding your book contract there are terms that will dictate how that disagreement is handled.

Here is one version from an old contract:

Any claim or dispute arising from or related to this Agreement shall be settled by mediation and, if necessary, legally binding arbitration in accordance with the rules of a mutually agreed upon alternative dispute resolution service. Judgment upon an arbitration decision may be entered in any court otherwise having jurisdiction. The parties agree that these methods shall be the sole remedy for any controversy or claim arising out of this Agreement and expressly waive their right to file a lawsuit in any civil court against one another for such disputes, except to enforce an arbitration decision.

Regardless of the place of its physical execution, this contract shall be interpreted under the laws of the State of XXXXXXXXXX and of the United States of America.

If you read this carefully you’ll see it lays out the rules that keeps a dispute out of the court system and forces the two parties to use binding arbitration instead.

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Review Any and Every Contract You Sign

by Steve Laube

Today’s headline sounds like a blinding flash of the obvious but you’d be surprised how many writers are not careful about the agreements they sign. Those with a literary agent have that business partner who will review their book contracts, that is a given. But what about their magazine article or online article contracts?

Earlier this month the Condé Nast organization, which includes Wired, Vanity Fair, and The New Yorker, surprised their freelance writers with a new agreement that has Condé Nast controlling the film and television rights on articles published by their magazines, with a cap on the revenue paid to the writer. Why? Because past articles turned into big box office hits like “Argo,” “Eat Pray Love,” and “Brokeback Mountain.”

This contractual assertion has put writers in a bind because they do not want to lose the chance to writer for these prestigious magazines.

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News You Can Use – Oct. 2, 2012

Why is the new J.K.Rowling e-book priced at $17.99? – This brief article presents some succinct economic details to help you further understand how this industry works.

Penguin Sues Authors for Advances Paid – There are at least two sides to every story, but this appears to be a number of cases where a writer signed a contract, accepted a sizeable cash advance, and never delivered the manuscript. There must have been previous attempts to get the money back for Penguin to resort to the court system to collect.

Get Paid More for your Freelance Work! – This article has 37 negotiating tips to improve your freelance editing income.

Congratulations to our clients Aaron McCarver, Diane Ashley, and Susan May Warren for winning the Carol Award for their fiction category. Click here for a complete list of winners and their book jackets. Well done!

The Accidental History of the @ Symbol – The origin of things like these is always fascinating to me. This article is from the Smithsonian Magazine.

The Importance of a Good Contract – “I Love Lucy” is worth $20 million annually…sixty years after the show aired.

My father, Roger G. Laube, passed away on September 15th and we recently held the burial and memorial services with family gathered from six states. He was a remarkable man who had an unwavering faith in God and a vigorous life in business, church, music, and family. He served as an incredible model for all who were touched by him. We love you Dad. You will be missed. An online memorial can be found at this link (http://bit.ly/QCg6tc). Included there is a full obituary and a “more photos” section. (Memorial gifts should be sent to Gideons International.). Picture to the left is from his 90th birthday, last year.

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Goodbye to Traditional Publishing?

by Steve Laube

Recently Ann Voss Peterson wrote of her decision to never sign another contract with Harlequin. One major statistic from the article is that she sold 170,000 copies of a book but earned only $20,000.

Multiple clients sent me Peterson’s “Harlequin Fail” article and wanted my opinion. My first thought is that this was typical “the publisher is ripping me off” fodder. But that would be a simplistic and knee-jerk reaction and unfair to both Peterson and Harlequin.

Yes, Harlequin pays a modest royalty that is less than some publishers. Since when is that news? That has always been their business model because it is the only way to create and maintain an aggressive Direct-to-Consumer and Trade publishing program. Their publishing machine is huge and they are a “for profit” company. For Profit. If they are unprofitable, they go away.

If an author is uncomfortable with the terms, then don’t sign the contract (which is Peterson’s decision going forward). I urge each of you to be careful not to sign a contract and then complain about it later. Unless you were completely hoodwinked you agreed to those terms and should abide by them.

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