Controversy over the moral clause in writers’ contracts: a personal scandal can change everything

A personal scandal, especially if it is a complaint sexual abuse Against a public figure, he can change everything: from avoiding the circulation of a book or the premiere of a film to the abolition of a millionaire contract. Beyond the impact on the media image of the character in question, the controversial affair surrounding the biography of Philip Roth, Blake Bailey, has revealed a gray area in a key legal aspect in contracts between authors and publishers. : the morality clauses that some large groups in the United States impose on writers and journalists. If an ethics bomb were to explode, splashing the author, as was the case with the rape allegations against Bailey, the publisher can terminate the contract and even demand repayment of the advance. In time of #Me tooIs invoking morality as a missile shield politically correct or is it an act of censorship?

The debate is settling on social networks and in literary circles, but publishers are taking refuge in confidentiality agreements between the parties to avoid whitewashing a situation that seems increasingly common in the United States, all the more so that the great exploded sex scandals surrounding hitherto “respectable” figures like Woody allen. No one yet recognizes that in the fine print of contracts in the publishing and audiovisual industries, one of the points says that “at the time when an author’s conduct, past or future, is put clearly, does not correspond to the reputation of the author at the time of signing the contract and which results in widespread and sustained public condemnation of the author which considerably reduces the potential for sale of the work ”, the company may terminate the contract. The last part of the clause is curious because, as public demand has already shown in several famous cases, most personal scandals tend to cause morbidity, fuel curiosity and, therefore, increase sales.

The moral clause does not apply in other countries. The Penguin Random House group, which will publish the Spanish edition of Philip Roth: The Biography, by Bailey, under the label Debate, confirmed to LA NACION that the book will arrive in Argentina in the first quarter of 2022. Local sources for the group have explained that traditional contracts do not provide for breach of contract for moral reasons. From Planeta, the other strong group in the Hispanic market, they also made it clear that they do not include these specifications in their contracts.

In the American market, it will soon be known whether repudiation or morbidity weigh more. The biography of Roth (1933-2018), which the WW Norton publishing house published on April 6 as a bestseller and was withdrawn from sale on April 29 following charges of rape and abuse against the author, has now come back to be sold in digital format (eBook and audiobook). On June 15, the printed edition (a monumental 900-page work) will reappear in American bookstores. The Skyhorse label took over the publishing post when WW Norton decided to cancel the contract.

With an initial circulation of 50,000 copies, it promised to become the book of the year. We therefore expect that now, after the media scandal, demand will be very high. A favorite of the Nobel Prize for Literature for years, Roth had personally chosen his biographer. When Bailey was embroiled in the sex scandal, the literary agency announced it would stop representing him. The author’s “punishment” did not affect international editions of the book, which was still available in Britain.

Critics of the moral clause have come from the Writers’ Union of the United States and PEN America, who expressed concern in a statement: “As an organization dedicated to celebrating and defending the freedom to write, we are gravely concerned about measures that may penalize writers. writers to express themselves ”. Suzanne Nossel, director of PEN America, told the Spanish newspaper El País that “there are variations in these provisions; They are not all the same, but the fear is that they could serve as an excuse for a publisher to terminate the contract. There is a lot of room for abuse. “

The Authors’ Union of the United States, for its part, had already warned of the danger of censorship in a statement released in January 2019, in which it alluded to McCarthyism and raised its objections to the moral clauses. “Publishers insist they need it. But most of these clauses are too broad and allow the publisher to terminate the contract on the basis of individual allegations or the vague notion of public condemnation, which can happen quite easily in the age of viral social networks. The ambiguity and subjectivity of these clauses open the door to abuse. Publishers should not have exclusive rights to decide whether a claim is true. And if the allegations are not true, the contract must not be terminated. These types of provisions infringe on freedom of expression.

THE NATION