Book Publishing in the Era of Social Media Cancel Culture
Cancel culture is a common occurrence amongst the chronically online folks in contemporary social media,[1] and book publishers are wielding morality and conduct clauses in their contracts to combat this contemporary phenomenon.[2] Morality clauses and conduct clauses are interchangeable terms—agents and authors generally refer to them as morality clauses, while publishers refer to them as a slightly more neutral conduct clause.[3] In effect, these clauses allow for book publishers to terminate the contract and stop the production of books if the author or illustrator is, well, canceled.[4]
Milo Yiannopoulos, a high-profile right-wing writer, filed a suit in 2017 against book publisher Simon & Schuster after his book contract was terminated.[5] Shortly after a video of Yiannopoulos making light of pedophilia made its round through the internet, Simon & Schuster terminated the contract for his book “Dangerous.”[6] Yiannopoulos filed a lawsuit in New York demanding $10 million in damages, claiming that the book publisher terminated the contract in bad faith.[7] The oft-controversial author ultimately dropped the suit with prejudice, meaning that Yiannopoulos could not bring this claim to court in the future.[8] From right-wing activists to Senator Josh Hawley, whose book deal with Simon & Schuster for “The Tyranny of Big Tech” was terminated in 2021, morality/conduct clauses loom over the future of book publishing contracts.[9]
Morality clauses first emerged around 1921 in a variety of entertainment industry contracts.[10] Nearly 100 years later, morality clauses have become standard in book publishing contracts.[11] These clauses affect each party to the contract and are used to police behaviors that offend the general public.[12]
What is a Morality/Conduct Clause?
In plain speech, a morality/conduct clause generally says that a book publisher will have the right to terminate a book contract if the author or illustrator develops a bad reputation. For example, a morality/conduct clause might say:
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.[13]
The first words of the clause—“Publisher may terminate”[14]—are drafted in a way that give the Publisher a right to terminate the author’s contract. From a contract drafting perspective, however, reserving a “right” for the Publisher creates ambiguity because it does not articulate an explicit obligation for any party of the contract to perform their side of the deal. Without articulating a specific right, problems can emerge during litigation when the litigators must establish who had an obligation to perform.[15] In the above excerpt, for instance, does the Publisher have an obligation to terminate the author’s contract if the other party’s conduct “evidences a lack of due regard for public conventions and morals,” or just an ability to do so?
Other than the issue of establishing which party is obligated to do something, another issue of vagueness in drafting invites potential for long and expensive litigation. After all, whose “public conventions and morals”[16] are the standard? How is a publisher able to definitively determine what “morals” are and what kind of behavior reaches a level of “serious contempt”?[17]
Morality and conduct clauses similar to the sample language above leave much room to be desired by both parties to the contract. In contract law, ambiguity is often construed against the drafter,[18] so publishers have an incentive to add more qualifying or descriptive language.
Now, we turn to examine the perspectives of both parties and the motivations behind the impassionate redlines.
The Book Publisher’s Perspective
From the outside looking in, a possible reason why book publishers would want to frame such clauses as “conduct” clauses could be for the optics. Although titles and subheadings are not usually actionable parts of a contract, the effect of calling these termination clauses “conduct” clauses is that the readers focus more on the behavior of the individual author or illustrator rather than what the book publisher is allowed to do.[19]
In doing so, the contract language puts the burden on authors to regulate their conduct, which gives the publisher protection and the ability to distance itself from unsavory characters and mitigate potential backlash from consumers.
Arguments on the publisher’s end could range from respect for contemporary social and cultural values to economic effects of a tarnished reputation.[20] Especially in the world of children’s literature, this threat of a bad role model seems to be a big argument in favor of conduct clauses.[21] For instance, popular author J.K. Rowling received backlash for posting messages on social media that many said were transphobic.[22] If Rowling had a conduct clause in her book contracts, a publisher may have been able to use the contract language to enforce its right to terminate her book contracts, an extreme measure that may have stopped the printing or selling of any more copies from her Harry Potter series.
Book publishers continue to shape cultural experiences, so maybe there are compelling reasons to punish authors for bad behaviors.[23] Additionally, conduct clauses can have a chilling effect on the authors and limit any negative effects on the reputation of the book, the publisher, and on the sales of the novel.[24]
Although there are reasonable arguments on behalf of book publishers in favor of retaining conduct clauses, it is worth exploring whether these clauses always benefit the publisher.
The Author’s Perspective
On the opposite side of the email thread are Agents and Authors who refer to such clauses as “morality” clauses.[25] These parties typically have less bargaining power and argue that publishers should do their due diligence and research authors and illustrators before doing a book deal.[26] This is an intuitive argument, because if a book publisher’s goal is to prevent bad actors from building or having a platform via book publishing, the publisher should weed out individuals who demonstrate bad behavior before offering a book deal.
This question of what constitutes bad behavior is something that publishers struggle to define in the clauses and is a question that agents and authors are adamant that publishers have no business deciding.[27] Publishers sometimes attempt to add qualifying language to the contract that is almost equally vague and difficult to define. For instance, a publisher might define bad behavior as something that causes “public condemnation,”[28] which can lead to further ambiguity within the contract.
The consequence of having a book terminated under this morality clause can be disastrous for authors and agents. Some clauses could include language where portions of advances paid to the author must be returned to the publisher.[29] Outside of monetary consequences, a public termination of a book contract related to the morality clause could hamper the author’s ability to get another book deal in the future.[30]
How Do We Move Forward?
The author and publishing company are rarely on equal playing ground. Morality clauses are a one-way street that only burden the author. There is no reciprocal language allowing an author to terminate a contractual relationship with the book publisher for anything a publisher might get “cancelled.”[31] It is no secret that book publishing contracts heavily favor book publishers because they have entire contracts teams, in-house counsel, and outside counsel to help draft their contracts.[32] Most authors do not have the same access to legal resources or enough bargaining power to ask publishers to strike the morality clause.[33] How do we move forward after that?
Both parties to a book publishing contract have understandable motivations for and against conduct clauses, but ambiguous or vague language simply does not achieve anything meaningful. While there is no perfect solution, a workable one is to focus on the contract drafting end. Specifically, parties should introduce mutually agreed upon language about what “bad behaviors” would trigger termination and who has the authority to make that determination.
Below is a sample of a morality/conduct Clause that includes more specificity about what constitutes “bad behavior”—demonstrating the slow evolution of morality/conduct clauses:
Publisher may at any time prior to publication choose not to publish the Work if past or future illegal conduct of the Author, inconsistent with the Author’s reputation at the time this Agreement is executed and unknown to Publisher, is made public and results in sustained, widespread public condemnation of the Author that materially diminishes the sales potential of the Work. Should Publisher elect not to publish the Work pursuant to this section, Publisher shall give the Author timely written notice of such decision, all rights in the Work shall revert to the Author, no further advances shall be payable, and the Author shall not be required to repay any sums paid to date.[34]
Those who believe they are the vigilantes of social change might think that cancel culture helps to weed out the chaff, and those who espouse harmful or backwards ideals.[35] They might cite the termination of Milo Yiannopoulos’ book “Dangerous” as evidence that morality clauses constitute a push for social good, but exercising caution and looking at the implications of these clauses is a more prudent approach. After all, media literacy is a necessary skill in this age of technology, but people often don’t have any training to help discern information from disinformation.[36] Letting cancel culture bleed into the book publishing industry and allowing a select group of individuals to limit what people can and cannot read, effectively allows a small group to impose their moral determinations upon a wider population.
[1] Nicole Dudenhoefer, Is Cancel Culture Effective?, Pegasus (Fall 2020), https://www.ucf.edu/pegasus/is-cancel-culture-effective/.
[2] Elizabeth A. Harris, How Getting Canceled on Social Media Can Derail a Book Deal, (Feb. 11, 2021), https://www.nytimes.com/2021/02/11/books/morals-clause-book-deals-josh-hawley.html#:~:text=The%20clauses%20vary%20from%20publisher,diminish%20sales%20among%20the%20book's.
[3] Why We Oppose Morals Clauses in Book Contracts, The Authors Guild (Jan. 24, 2019), https://authorsguild.org/news/why-we-oppose-morals-clauses-in-book-contracts/.
[4] Id.
[5] Elahe Izadi, Milo Yiannopoulos loses his book deal with Simon & Schuster amid growing outcry, Wash. Post (Feb. 20, 2017), https://www.washingtonpost.com/news/arts-and-entertainment/wp/2017/02/20/milo-yiannopoulos-loses-his-book-deal-with-simon-schuster-amid-growing-outcry/.
[6] Id.
[7] Andrew Albanese, Judge Says Yiannopoulos’ Lawsuit Against S&S Can Proceed, Publishers Wkly. (Oct. 5, 2017), https://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/74986-judge-says-milo-yiannopoulos-lawsuit-against-s-s-can-proceed.html.
[8] Jim Milliot, Yiannopoulos Drops Lawsuit Against S&S, Publishers Wkly. (Feb. 20, 2018), https://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/76105-yiannopoulos-drops-lawsuit-against-s-s.html.
[9] Rachel Kramer Bussel, Josh Hawley is using his book deal and the First Amendment to act the martyr, (Jan. 12, 2021, 2:50 PM PST), https://www.nbcnews.com/think/opinion/josh-hawley-using-his-book-deal-first-amendment-act-martyr-ncna1253964.
[10] Matthew Fulton, What Authors Need to Know About Morals Clauses, Romano L. Blog (Oct. 3, 2022), https://www.romanolaw.com/what-authors-need-to-know-about-morals-clauses.
[11] Pen America on “Morality Clauses”, Pen America, https://pen.org/pen-america-on-morality-clauses/ (last visited May 24, 2024).
[12] Authors Guild, supra note 3.
[13] Id.
[14] Id.
[15] Tina L. Stark, Drafting Contracts: How and Why Lawyers Do What They Do (2d ed. 2014).
[16] Authors Guild, supra note 3.
[17] Id.
[18] Restatement (Second) of Contracts § 206.
[19] Chiara Bullen, Byte Experts: The Morality Clause and 21st Century Publishing, Byte the Book (Jan. 17, 2022), https://bytethebook.com/byte-experts-the-morality-clause-and-21st-century-publishing-by-chiara-bullen/.
[20] Authors Guild, supra note 3.
[21] Pen America, supra note 11.
[22] JK Rowling dismisses backlash over trans comments: ‘I don’t care about my legacy’, BBC (Feb. 22, 2023), https://www.bbc.com/news/entertainment-arts-64729304.
[23] Pen America, supra note 11.
[24] Authors Guild, supra note 3.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Pen America, supra note 11.
[30] Claire Armitstead, Morality clauses: are publishers right to police writers?, The Guardian (Jun. 13, 2018), https://www.theguardian.com/books/2018/jun/13/junot-diaz-sherman-alexie-morality-contract-publishers.
[31] Authors Guild, supra note 3.
[32] Emily Condlin, Why Our Lawyers May Be Among Your Earliest Readers, Penguin Random House (March 2015), https://authornews.penguinrandomhouse.com/why-our-lawyers-may-be-among-your-earliest-readers/.
[33] Pen America, supra note 11.
[34] Authors Guild, supra note 3.
[35] Nicole Dudenhoefer, supra note 1.
[36] Media literacy skills important to counter disinformation, survey says, Boston Univ. Coll. of Commc’n. (Jan 30, 2024), https://www.bu.edu/com/articles/media-literacy-skills-important-to-counter-disinformation-survey-says/.