HarperCollins authors – have you read your Ten Commandments lately? How about the Seven Deadly Sins? You’d better bone up on them. It seems there’s a morals clause in your publisher’s contract. Not moral rights, mind you (for a discussion of Droit Moral click here). We mean morals. Your morals.

New language in the termination provision of the Harper’s boilerplate gives them the right to cancel a contract if “Author’s conduct evidences a lack of due regard for public conventions and morals, or if 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.” The consequences? Harper can terminate your book deal. Not only that, you’ll have to repay your advance. Harper may also avail itself of “other legal remedies” against you.

We learned about Harper’s morals clause in an article by Brooklyn attorney F. Robert Stein published in the November 2010 issue of the Novelists Ink Bulletin and brought to our attention by author and editor Steve Carper. (The complete text of the provision can be found at the end of this posting.)

Does this mean that if you covet your neighbor’s wife, Harper could cancel your contract? Probably not, though you should try to modify the clause to prevent arbitrary application of the provision.

Where the morals clause is more likely to come into play is when your sin damages Harper’s ability to sell your book. Stein puts it this way: “I strongly suspect that HarperCollins could care less about their authors’ morals…unless and until a moral indiscretion threatens to reduce the value of the author’s book. Imagine if former New York Governor Eliot Spitzer had, during his term in office, contracted with HarperCollins to write a book entitled I Choose to Be Purer Than Caesar’s Wife.  Once Spitzer’s dalliances with multiple prostitutes became public, the potential audience for that book would likely have dropped precipitously, and HarperCollins’ ability to recoup its advance would have been seriously compromised.”

We are not aware of any other major publisher with a morals clause, and though we can appreciate why Harper might want to protect itself against scandals that damage book sales, it’s an extremely mischievous innovation and we urge Harper to reconsider it.

Besides, it could backfire. For who is to say that scandalous behavior cannot actually increase book sales? We’ve seen it happen again and again.  Therefore, if you one day run afoul of Harper’s legal eagles because you left your hanky in the wrong panky, you might consider invoking The Bentley Defense.

What’s The Bentley Defense?  Toni Bentley is a former ballerina who published a memoir entitled The Surrender. It happens that what she surrendered to was the bliss of anal sex.”My ass,” she rhapsodized, “is my very own back door to heaven.”  But instead of causing her book to tank, her graphic descriptions of her predilection had the opposite effect: The Surrender was an international bestseller. Publishers Weekly described it as “wonderfully smart and sexy and witty and moving, a tale of unbounded passion that leads to transcendence.”

If this had been a Harper book, what would they have done about this author with her taboo-shattering parade of iniquity and degeneracy?  Actually we don’t have to speculate, because it was a Harper book!

And what did they do about the author? Send her lots and lots of royalties, we imagine.

Richard Curtis

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8. PUBLISHER’S RIGHTS OF TERMINATION
If (i) Publisher determines that any of the representations of Author set forth in Section 6(a) is false, or (ii) Author breaches the covenants set forth in Sections I(f), I(g), 2(c), or 2(d), or (iii) Author commits a breach of any covenant contained in the Special Provisions section of Part I above for which Publisher is given a right of termination, or (iv) 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, Publisher may terminate this Agreement and, in addition to Publisher’s other legal remedies. Author will promptly repay the portion of the Advance previously paid to Author, or, if such breach occurred following publication of the Work, Author will promptly repay the portion of the Advance which has not yet been recouped by Publisher.