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The U.S. Supreme Court this week officially pulled the plug on the Lanham Act’s prohibition on the registration of trademarks that comprise “immoral” or “scandalous” matter on First Amendment grounds.  The prohibition, found in Section 2(a) of the Act, was already on life support after the Court’s 2017 decision in In re Tam found the U.S. Patent and Trademark Office’s refusal to register the name of an Asian rock band called “THE SLANTS” constituted an impermissible viewpoint-based restriction on speech.  This gave streetwear designer Erik Brunetti the green light to proceed with his longstanding dispute with the USPTO.

As previously reported, Brunetti had sought to trademark his brand name “FUCT” since 2011 to no avail.  Ultimately, however, Brunetti successfully challenged the refusal in the Federal Circuit which found denying Brunetti registration simply because his mark was deemed to be “immoral” and/or “scandalous” violated the First Amendment.  The government petitioned for certiorari.

The Supreme Court unanimously found the “immoral” component of Section 2(a) to be unconstitutional, and a 6-3 majority struck down the “scandalous” portion as well.  Justice Elena Kagan penned the opinion of the Court and recognized that the section unlawfully empowered the USPTO to promote certain messages while disfavoring others.   For instance, Kagan notes the USPTO granted registration of marks to the Drug Abuse Resistance Education (D.A.R.E.) program while refusing to register the marks “BONG HITS 4 JESUS”, “YOU CAN’T SPELL HEALTHCARE WITHOUT THC”, and “MARIJUANA KOLA.”

Justices Sonia Sotomayor, Stephen Breyer, and John Roberts partly dissented over concerns that striking the prohibition of the registration of “scandalous” matter would require the government to register marks so obscene and/or hateful that they could incite a violent reaction.  “Just think about how you might react if you saw someone wearing a t-shirt or using a product emblazoned with an odious racial epithet,” Breyer warned.  The dissent argued the “scandalous” provision of the law could be salvaged because it does not attack ideas, but rather only how those ideas are expressed.

The majority disagreed but left the door open to Congress to adopt, in Justice Alito’s words, “a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas.”  In other words, if a mark was deemed wholly obscene under the Miller test (which is a standard as nebulous as the word “obscene” itself), it could theoretically still be refused registration if Congress so chooses.  Congress could also theoretically redraft Section 2(a) to cover marks that constitute fighting words and/or have the likely impact of inciting imminent violence.  But a broad ban on marks the USPTO finds to be “immoral” and/or “scandalous” is a thing of the past.

The United States Supreme Court decided this week that purchasers of apps through the Apple App Store have standing under federal antitrust law to bring a class-action lawsuit against the tech giant.

The Sherman Antitrust Act makes it unlawful for any person to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States…” 26 Stat. 209, 15 U.S.C. § 2.  Section 4 of the Clayton Act in turn provides that “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue…” 38 Stat. 731, 15 U.S.C. §15(a) (emphasis added).  The issue in this case is the scope of the phrase “any person… injured.”

The Plaintiffs are four iPhone owners who sued Apple, alleging that the company has monopolized the retail market for the sale of apps and has unlawfully used its monopolistic power to charge consumers higher-than-competitive prices.

To sell an app in the App Store, app developers must pay Apple a $99 annual membership fee along with 30% of the sales price of any app.  According to the complaint, the 30% commission is “pure profit” for Apple – a cost these plaintiff-consumers argue is passed on to them.  In a competitive environment with other retailers, Plaintiffs reason, “Apple would be under considerable pressure to substantially lower its 30% profit margin.”  But by contract and through technological limitations, the App Store is the only place where iPhone owners may lawfully buy apps.

Apple moved to dismiss, arguing that the iPhone owners lack standing to sue because they are not direct purchasers from Apple under the “Illinois Brick doctrine” established by the Supreme Court in 1977, which determined that indirect consumers of products lack Article III standing to bring antitrust charges against producers of those products.

In that case, Illinois Brick Company manufactured and distributed concrete blocks.  It sold the blocks primarily to masonry contractors who sold masonry structures to general contractors.  Those general contractors in turn sold their services for large construction projects to the state of Illinois, the ultimate consumer of the blocks.

The State sued Illinois Brick under the Sherman Act, alleging that the company had engaged in a conspiracy to fix the price of concrete blocks.  As a result, the State alleged, it was forced to pay more for the concrete blocks than it would have paid absent the price-fixing conspiracy.  However, the Supreme Court ruled that the State could not bring an antitrust action against Illinois Brick because it had not purchased concrete blocks directly from Illinois Brick, but was several steps removed from the alleged antitrust violator in the distribution chain.

Accordingly, Apple argued that the consumer-plaintiffs in this case could not sue Apple for antitrust injuries because – like the State in Illinois Brick – they were not “direct purchasers” from Apple since the App Store deals in apps created and sold by independent developers.

The Court, however, was unpersuaded.  Unlike the consumer in Illinois Brick, the Court reasoned, “the iPhone owners here are not consumers at the bottom of a vertical distribution chain who are attempting to sue manufacturers at the top of the chain.”  Here, “the absence of an intermediary in the distribution chain between Apple and the consumer is dispositive.”

Further, the Court expressed concern that Apple’s limited theory of standing would “provide a roadmap for monopolistic retailers to structure transactions with manufacturers or suppliers so as to evade antitrust claims by consumers and thereby thwart effective antitrust enforcement.”

The Court’s decision empowering app purchasers to sue for antitrust injury could become impactful in other media contexts.  For instance, a few weeks ago, YouTube TV subscribers received the unfortunate news that the price for an online bundle of television networks would soon increase.  After the Google division reached a pricey content licensing deal with Discovery, YouTube TV passed along the additional cost to consumers.  Notably, those who signed up for the service through Apple had to pay even more.

Whether the conduct of Apple (and others) actually rises to the level of an antitrust violation has yet to be decided.  But the high court’s decision rejecting a too-narrow definition of “direct purchaser” gives more consumers a bite at the antitrust apple.

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After almost four years of litigation between TBS late-night talk show host Conan O’Brien and comedy writer Alex Kaseberg over five jokes Kaseberg alleged Conan and his writing team stole from Kaseberg’s Twitter feed, the clashing comics finally reached a settlement.  Though the terms of the agreement are confidential, both parties seem relieved the case has finally run its course.

O’Brien told Variety that the dispute ended “amicably.”  He added, “I stand by every word I have written here, but I decided to forgo a potentially farcical and expensive jury trial in federal court over five jokes that don’t even make sense anymore.  Four years and countless legal bills have been plenty.”

Kaseberg also seemed content with dropping the curtain.  “As a professional comedy writer, all I want to do is make people laugh and stand up for the things I believe in,” Kaseberg told Variety.  “I am proud my case helped shed light on an issue facing all comedy writers and am happy to have been part of contributing legal precedent on the issue of protection afforded to jokes.”

The five jokes that set all of this into motion seemed innocent enough.  They consisted of a jeer about Patriots’ quarterback Tom Brady giving Seahawks’ coach Pete Carroll the new Chevy Colorado that Brady promised to the “MVP” of Superbowl XLIX, a gag about a hypothetical street named after Bruce Jenner having to be renamed “cul-de-sacless,” a jest about a discovery that the Washington Monument is ten inches shorter than previously recorded because of “shrinkage” from cold weather, a jab teasing commercial airline passengers for always fighting over the armrest, and a taunt of the Oakland Raiders for their seemingly perpetual futility.

As previously reported, O’Brien knocked out two jokes on summary judgment on the grounds that they were independently created and/or too different from Kaseberg’s jokes for a jury to conclude that they were copied.  But the jeers about Pete Carroll, Bruce Jenner, and the Washington Monument remained in play and raised serious concerns over determining whether a newsworthy joke poking fun at current events could be said to have infringed a similar but slightly different joke that pokes fun at the same facts and events.  Given that the jokes at issue in this case were newsworthy, the judge found that the jokes would have to be “virtually identical” to be actionable.  However, the court was unwilling to decide this issue at summary judgment and set the stage for a long and arduous journey toward trial – a journey surely most comedians would like to avoid.  And for good reason.  Copyright infringement is no laughing matter.

A fashion designer and two luxury department stores have landed in hot water after selling products reminiscent of “The King of Cool”. While right of publicity cases frequently turn on alleged appropriation of a celebrity’s name or likeness, the case here seeks to extend a celebrity’s personal brand to cover his fashion choices.

Chadwick McQueen, the son of the late Steve McQueen, has filed suit against Tom Ford, Neiman Marcus, and Bergdorf Goodman for trademark infringement, violation of the right of publicity, false endorsement, and unfair competition. Chadwick and City National Bank control his father’s estate, including intellectual property rights. The McQueen Estate filed suit in Los Angeles County California Superior Court.

Tom Ford, Neiman Marcus, and Bergdorf Goodman previously offered a Tom Ford “McQueen Cardigan” and a Tom Ford “Wool McQueen Cardigan” for sale on their websites. In the McQueen Estate’s lawsuit, the plaintiffs allege that the line of sweaters offered by Tom Ford closely resemble those worn and made famous by Steve McQueen. According to the complaint, by offering this line of sweaters, Tom Ford capitalized on McQueen’s popularity as a fashion icon and his well-known image. The plaintiffs argue that the wool cardigan sweater with a distinctive shawl collar is “synonymous with McQueen”. In support of this contention, the complaint cites an article posted on the website “Style Girlfriend,” which describes McQueen’s distinctive taste in sweaters and describes him as “the lord of manly knitwear.”

According to the U.S. Patent and Trademark Office, the McQueen Estate owns multiple federal trademark registrations for the mark “STEVE MCQUEEN”. According to one registration for the mark (Reg. No. 3948067), “STEVE MCQUEEN” is registered for use with knit shirts, coats, jackets, shirts, sweaters, t-shirts, among other apparel.

The lawsuit alleges Tom Ford’s “McQueen Cardigan” and “Wool McQueen Cardigan” were offered for $2,390. Both sweaters are now unavailable on the Tom Ford official website. However, the “Merino McQueen Cardigan” is currently listed on Tom Ford’s website and priced at $1,690. The complaint further alleges that Bergdorf Goodman sold a “Steven McQueen Cardigan” that was advertised as “pure cashmere cardigan in Steven McQueen style.”

The complaint states that neither Tom Ford nor Neiman Marcus has a license to use the intellectual property owned by the Steve McQueen estate. As a result, the complaint alleges that Tom Ford’s sale of the “Steve McQueen Cardigan” creates a false impression that the McQueen Estate authorized the line of products. Plaintiffs argue that the defendants used Steve McQueen’s name, likeness, and persona to market the “McQueen” sweaters, causing consumer confusion as to the “source, origin, sponsorship, and association” of the product line.

The McQueen Estate is seeking actual damages, lost profits, two million dollars in statutory damages for each registered trademark that it alleges has been infringed, and attorneys’ fees. The estate is also seeking an injunction barring the defendants from using the “STEVE MCQUEEN” trademarks.

The Los Angeles Superior Court will decide.

This is an update on my blog post regarding the face-off between the Writers Guild of America (WGA) and the major talent agencies, through the Association of Talent Agencies (ATA).

To summarize–OMG!! 

The WGA issued an ultimatum requiring the agents to sign their Code of Conduct forswearing package commissions. This is the practice by which agencies are paid directly out of the budget of television shows rather than by taking 10% of their clients’ gross earnings. It’s not disputed that this practice sometimes results in agents making more than their clients on a show. The agents see this as a win-win, since the writers save the commission on their fees. The WGA sees it as creating a conflict of interest that ultimately harms writers. For the last several months, Hollywood held its breath in the hope that the parties would bridge this divide. This did not happen. The WGA directed its members to fire their agents, which over 7,000 have done so far.

The result makes compelling water cooler conversation but is otherwise a bloody mess. Here is the latest.

  • The WGA has filed suit against the ATA and the Big Four agencies (WME, CAA, ICM and UTA), alleging that the practice of collecting package commissions constitutes breach of fiduciary duty and unfair competition under state and federal law.
  • The entire ecosystem under which writers found jobs is upended. Under the California Talent Agencies Act (TAA), only licensed talent agents can “procure” employment for writers. The WGA has issued a statement delegating authority to managers and lawyers to find work for writers notwithstanding the statute, but many (including the ATA) question the union’s authority to do so. The WGA has offered to indemnify lawyers and managers against TAA claims. So far, however, no one has taken it up on this offer.
  • Lawyers, but especially managers are in a tight spot. They have writer clients to service without agencies to back them up and provide cover. They can procure employment for their clients in violation of the TAA, at risk of being required to disgorge any commissions received if their client files a claim with the State Labor Commissioner. Meanwhile, the big agencies have made it clear that they will not look kindly upon managers and lawyers who encroach upon their territory, and will remember who their friends are when this dispute is finally resolved.
  • No one knows how open writing assignments will be filled, since this was a central role of the agencies. The WGA has set up an online database to facilitate matchmaking, and showrunners are falling back on their personal networks. These are early days, however. There will undoubtedly be loss of efficiency in staffing but how serious it will be and who will suffer remains to be seen.
  • The endgame is far from clear. The consistent position of the WGA has been that it will simply not  tolerate packaging any longer. It even rejected out of hand an eleventh-hour offer by the ATA to negotiate a split of package commissions. On the other hand, package commissions have comprised a major part of agencies’ revenues for over forty years. It is hard to see the Big Four giving them up, and they have the financial strength to function without commissions from writer deals indefinitely. If both sides insist on playing out the litigation option, we are in for years of stalemate. Without venturing any predictions, here are some possible outcomes, some likelier than others:
    • Midsized and smaller agencies break ranks, sign the Code of Conduct and poach Big Four clients.
    • New staffing mechanisms develop that work so well that writers wonder why they ever thought they needed agents in the first place.
    • Writers become frustrated and exhausted, abandon the union and go back to their agents.
    • The WGA turns on the managers, asserting that their practice of producing on their clients’ projects is a breach of fiduciary duty and conflict of interest.
    • The ATA sues the managers for violating the TAA and for unfair competition.
    • The ATA and WGA make a deal and bury the hatchet. (This is actually bound to happen eventually.)

Worried? Confused? Me too. I need a break. What’s on TV?

A change in the rules for Oscar eligibility proposed by the Academy of Motion Pictures Arts and Sciences (AMPAS) may violate antitrust laws, according to the Department of Justice.

At issue is whether feature-length films produced by streaming services like Netflix should be eligible for Oscar consideration, even though they don’t have a significant theatrical run. The DOJ weighed in on the issue in the wake of reports that Academy board member Steven Spielberg was planning to push for such a rule change.

Spielberg first made his views on the subject known last year, telling ITV News that, while Netflix and other streaming platforms have elevated the quality of television, “once you commit to a television format, you’re a TV movie… If it’s a good show [it] deserve[s] an Emmy, but not an Oscar.” In Spielberg’s view, the movie theater experience is essential to truly appreciate and reward the cinematic art form. His proposed rule change would preclude Oscar eligibility for films that do not have a significant theatrical run.

But in a March 21 letter, DOJ antitrust chief, Makan Delrahim warned the Academy that such a rule may violate Section 1 of the Sherman Act, which “prohibits anticompetitive agreements among competitors.”

“Accordingly,” Delrahim cautioned, “agreements among competitors to exclude new competitors can violate the antitrust laws when their purpose or effect is to impede competition by goods or services that customers purchase and enjoy but which threaten the profits of incumbent firms…

[I]f the Academy adopts a new rule to exclude certain types of films, such as films distributed via online streaming services, from eligibility for the Oscars, and that exclusion tends to diminish the excluded films’ sales, that rule could therefore violate Section 1.”

The proposed rule change was seen by some as a direct attack on Netflix. Though the streaming service has garnered increasing acclaim for its feature films – including Alfonso Cuaron’s “Roma”, which took home three Oscars this year – it typically does not release its films in theaters.

Netflix responded to reports of Spielberg’s comments early last month, tweeting:

“We love cinema. Here are some things we also love:

  • Access for people who can’t always afford, or live in towns without, theaters
  • Letting everyone, everywhere enjoy releases at the same time
  • Giving filmmakers more ways to share art[.]

These things are not mutually exclusive.”

Notwithstanding Netflix’s populist appeal, the DOJ’s position in defense of the streaming service’s Oscar aspirations simply may not hold water.

First, the objective of antitrust law is to protect the process of competition for the benefit of consumers, making sure there are strong incentives for businesses to operate efficiently, keep prices down, and keep quality up. Accordingly, the Sherman Act does not prohibit every restraint of trade, only those that are unreasonable. The DOJ’s position on the Academy’s proposed rule assumes both the manner and degree to which consumers are ultimately impacted by Oscar noms.  The anticompetitive impact may very well be too minor, speculative, or indirect to be considered “unreasonable.”

Second, the Academy is not a trade association in the model contemplated by the Sherman Act. Per se violations of the Act include plain arrangements among competing individuals or businesses to fix prices, divide markets, or rig bids.  Despite the Academy’s origins as a “company union,” today, it’s a collective of individuals from across the international film community.   Its membership includes several streaming service execs, and the majority of members have no particular studio affiliation or allegiance.

The Board of Governors will meet on April 23 for its annual awards rules meeting. The Academy hasn’t said whether it will consider the rule change.

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Rappers Terrence “2 Milly” Ferguson and James “BlocBoy JB” Baker, influencer Russell “Backpack Kid” Horning, and actor Alfonso Ribeiro (best known for his role as “Carlton Banks” in the sitcom “The Fresh Prince of Bel-Air”) have dismissed their claims against Epic Games for allegedly infringing their signature dance moves in the wildly popular videogame “Fortnite.”

“Fortnite” is an animated battle royale where fictional characters perform a victory dance after defeating an opponent.  “Pay or Play” previously reported on these cases in December, and it appeared many months would pass before the final curtain call.  Yet none of the cases got beyond the pleading stage.

The dismissals came about a month after the U.S. Copyright Office released its decision not to register Ribeiro’s dance routine.  According to the letter, although the Copyright Act does protect choreographic works, Robeiro’s moves constituted a “simple dance routine,” and “social dances, simple routines, and other uncopyrightable movements are not ‘choreographic works’ under the Act.”

In February, Epic moved to dismiss the plaintiffs’ claims under California’s anti-SLAPP statute and argued all of the moves alleged to be infringed were “simple routines” consisting of basic body movements.  Epic noted that placing these moves, such as an arm swing, side step, or head dip, outside the public domain would “cause every person who performs the step on television, at a wedding, or in any other public place to be susceptible to a copyright infringement claim.”  Regardless, Epic argued that the “Fortnite” version of the dances were not substantially similar to the plaintiffs’ performances in that the moves varied, were displayed at different tempos, and were depicted in a transformative context (i.e., celebrating victory on the battlefield vs. acting in a sitcom or music video, or performing on live television).  Additionally, Epic contended plaintiffs’ right of publicity claims were meritless because the game’s avatars have no resemblance to the plaintiffs and the value of the game does not principally derive from the plaintiffs’ fame.

All of the dismissals came before Epic’s anti-SLAPP motion could be decided and were without prejudice, which indicates these suits could be revived at some point.  But for now, it appears Epic will have the last dance.

The Writers Guild of America (WGA) and the major talent agencies are headed for a showdown. The consequences are literally unknowable but could upend the way the television business has operated for decades. This blog will tell you what’s behind the fight and what each side has been saying about it. A disclaimer before I proceed, however. This firm represents many writers and of course works closely with their agents. It is not my intention to take sides and I welcome comment from any who think I have misrepresented their position.

Talent agencies licensed by the State of California have a statutory monopoly over the procurement of employment in the entertainment industry. New York has a similar statute. The guilds representing writers, directors and performers have piggybacked on this statutory regime to assert the right to impose their own franchise agreements on the agencies, which they negotiate through the agents’ representative body the Association of Talent Agencies (ATA). These agreements vary among the three unions, but include provisions for example limiting the agents’ rights to collect commissions on residuals and permitting clients to terminate agency agreements when their agents aren’t getting them work. These franchise agreements have remained substantially unchanged for years and have accrued substantial precedential value. For example, the performer’s union SAG (now SAG-AFTRA) attempted unsuccessfully to overhaul their franchise agreement in 2002 and the agreement expired yet both union and agencies have continued to operate more or less as if it had remained in force. Now the WGA franchise agreement is about to expire, and despite this history the Guild is demanding huge changes in the way the agencies do business. Renounce packaging and producing, it says, or we will seek a vote authorizing us to require our members to fire their agents who do not cooperate. Although the ATA and WGA have had several negotiating sessions since the WGA announced its position, very little progress has been made. What is at stake that prompts the parties to put so much at risk?

In its ideal state, packaging is a practice by which an agency will assemble a number of key creative elements on a show from among its clients, e.g, the creator, showrunner, directors and star, and sell it to a studio or network. Then, rather than collect a 10% commission off the fees paid to each individual client, it receives a commission (typically 3%) out of the network license fee or show budget paid directly by the studio or network for the life of the series, another 3% of the license fee or budget deferred and paid out of first net profits, and 10% of backend revenues. As the agents see it, both they and their clients benefit from this practice. The clients save the 10% they would otherwise be paying out of their fees, while agents stand to make considerably more than they would in a straight commission situation. It also benefits the agency’s lower-level clients by giving them preferred access to jobs on that show.

The writers have a different view. They say that when an agency’s compensation is severed from its clients’, there is an inherent conflict of interest. The WGA has released numerous public statements in which writers recounted instances in which they claim their agents used a package position to benefit themselves at the expense of their writer clients. Many show creators expressed incredulity that their agents got package commission on shows they’d played no part in selling. Some went further to complain that when the agents were active in pitching their shows, they sold them to a less attractive buyer that offered a package rather than a make a better deal with a buyer that did not. Some even claimed that their agency had killed a deal entirely because a buyer refused to give it a package. Mid- and lower-level writers expressed concern that their agents were accepting inferior deals for them rather than disturb their cozy relationship with the buyers, especially since the package commission would be the same regardless.

The agencies have also been sticking their toes in the water as producers, albeit indirectly. On its face, this is a more direct conflict of interest than packaging, because the agencies are directly employing their clients, and indeed the franchise agreements of all three guilds prohibit this practice. Recently, however, as some of the biggest agencies have grown in size and scope, they’ve formed affiliated production companies which they say will operate at arms’ length from their agency affiliates. A further complication is that some of these production companies are WGA signatories, which means the union consented to permit them to hire WGA writers, a position it now disavows.

Agents have been packaging programs for decades. Writers have grumbled about it in the past, but have never before joined forces to take what is after all a considerable risk to them in order to try to force a change. A number of other factors are at play that have brought these issues to a head. First, the agency business itself has been changing. While writers have tolerated the perceived unfairness of television packaging, many regard the agencies’ forays into producing as a step too far. The big agencies have also accepted outside investment in order to diversify into sports, fashion, consulting and other areas far outside their traditional businesses of talent representation. This has tended to increase the sense of some clients that their agents’ interests are not necessarily aligned with their own. All this is happening while outside economic pressures on writers are increasing. Although the explosion in programming from streaming services has created more job openings, it hasn’t always put more money in the pockets of working writers. Where a season of a successful series on a broadcast network will comprise 22 episodes plus generous residuals, cable and streaming series orders will be 8, 10 or 13 episodes, with much smaller residuals, if any. Moreover, despite the shorter orders, the producers of these series still require the same level of exclusivity as for broadcast, so that writers must hold themselves off the market for much lower guaranteed fees.

This dispute will be coming to a head very soon. The current WGA franchise agreement expires on April 6. The WGA is insisting as a condition of renewing that agreement that the ATA agree to a Code of Conduct in which they will give up packaging and sever ties with their production company affiliates. WGA members will be voting this week whether to approve a resolution requiring writers to fire their agents if the agents do not sign the Code of Conduct. Meanwhile, very little progress has been made in negotiations between the WGA and ATA to reach a less drastic solution. If those negotiations fail and the writers approve the resolution, the outcome will be unpredictable. Some writers could break ranks and choose not to fire their agents. For example, writers who work primarily in features do not have a stake in the packaging debate. There could also be a split in the agency ranks, as smaller agencies, which depend less on packaging and not at all on producing, seize the opportunity to pick off clients from the big four (WME, CAA, UTA and ICM). Or the parties could stand firm and a new ecosystem could develop for marketing and staffing projects. The WGA has openly solicited managers and lawyers to fill this role, notwithstanding that they would be vulnerable to penalties as unlicensed talent agents. The Guild has also announced a system under which writers will submit themselves directly to showrunners for hiring.

It is still possible that the parties will make a deal in the eleventh hour. In the meantime, it’s fair to say that Hollywood is nervously awaiting what will come next.

 

 

Bette Davis and Joan Crawford never “tweeted” about their so-called rivalry – and that’s probably for the better.

Throughout the Golden Age of Hollywood, consumers were not exposed to each and every thought and opinion of top actors like Jimmy Stewart, Bette Davis, and Joan Crawford. The lack of technology at that time kept the public from knowing many personal, social, and political views of entertainers that hadn’t been carefully curated for public consumption.

Today, social media has opened a large door of instant communication. Like many things, this can be a positive and a negative. One “tweet” can expose a celebrity’s unpopular views and nearly instantaneously ruin his or her career.  Screenshots from fellow internet users and websites aggregating content can expose statements from the past that quickly change a person’s image tomorrow.

The news media – both traditional and modern — can add to the pressure on content creators to hold entertainers accountable for all statements. This presents a big issue for morals clauses often found in talent agreements in the entertainment industry.

What is a Morals Clause?

A morals clause prohibits an artist from engaging in conduct (and sometimes speech) that will bring either the artist or the other party to the contract (generally, a studio, production company, or network) into “public disrepute, scandal, embarrassment,” or generally cast a bad light on the company’s reputation.  Criminal conduct commonly falls under the definition of prohibited acts in a morals clause, but acts that fall short of breaking the law can violate the clause, too. For example, some morals clauses prohibit conduct that is offensive, shocks or insults public morals or public decency. Companies generally push for morals clauses in their contracts to protect their brand and reputation.

Further, companies and studios negotiating morals clauses typically seek to keep the language defining the objectionable conduct broad, so as to cover a range of conduct that would breach the agreement. The rationale for these companies is that they’re making an investment by hiring the artist for an endorsement deal, or a talent deal (such as an acting agreement) where that person’s face (and likely their actions) are associated with that company – on and off screen. From the studio’s perspective, maintaining a clean image is crucial – particularly in today’s climate where allegations of sexual misconduct, gender discrimination, and racial discrimination are quickly judged by the court of public opinion.

On the other hand, artists and athletes in talent and endorsement deals will push for more narrow language that specifies the exact conduct that is prohibited. Attorneys negotiating on behalf of entertainers may request that only criminal convictions violate the morals clause, not merely accusations, charges, or even proceedings.

It Starts With a “Tweet”

The following scenario is fairly common: 1) an actor employed by a film studio makes a controversial statement on his or her official Twitter account; 2) the actor’s statement instantly reaches thousands, or millions of followers, some argue they are offended, others defend the actor; 3) media outlets report the controversial statement, questioning why the film studio continues to employ this actor; and 4) now the pressure is on the film studio to make a decision: continue to employ the actor and face backlash, or enforce the morals clause and likely terminate the actor from the production. One tweet can have a major domino effect. Talk show appearances and interviews are often mapped out by talking points to protect an artist from discussing a detrimental topic. However, lawyers, managers, and publicists may not always know when an artist will send a “tweet” or what the artist will say – nor can they control it. Thus, due to the personal nature of social media, an entertainer may not have fully vetted a statement with his or her representatives prior to releasing it to the world via Twitter or Instagram.

Some say that information is “weaponized” in the era of #MeToo, Time’s Up, and other campaigns that seek to hold people accountable for their actions, today and in the past. Attorneys working with entertainment industry clients have a bigger incentive now more than ever to make clients aware of the parameters of morals clauses.  It’s important for entertainers to understand that something as quick and simple as a “tweet” can turn into a violation of a morals clause. Further, even if the public doesn’t discuss a “tweet” today, it can lurk on the internet, only to be placed in the spotlight in the future.

How do these old “tweets” resurface? While some entertainers quickly delete “tweets” and other social media posts when a controversy arises, they should be mindful of screenshot technology and websites that are in the business of archiving older social media posts, even those that are deleted. This means, a “tweet” from 2010 may be uncovered today, instantly impacting how the public views that entertainer.

Understanding the Parameters of a Morals Clause

It’s important for entertainers to understand the remedies available to a company he or she has contracted with in the event of a morals clause violation. Can the company terminate immediately due to a violation of a morals clause? Is there a cure period? There is sometimes room for interpretation as to what exact conduct constitutes a breach, and whether the artist has engaged in that conduct. Many agreements will allow a studio or network to terminate the agreement or suspend the talent’s services due to the talent’s violation of a morals clause.

One solution (although an extreme one) to prevent a morals clause mishap may be to stop using social media altogether.  This is unlikely to happen as social media has become an increasingly lucrative marketing tool and entrepreneurship vehicle for many entertainers. Another solution could be for public relations teams to step in and vet an artist’s “tweets” and other social media postings prior to publication. Some artists include their lawyers when drafting messages to fans. Some artists simply allow their representatives to run their social media accounts. This still leaves open the possibility of spontaneous social media posts that make the artist look bad.

In short, it can greatly benefit entertainers to be aware of their morals clauses. Entertainers should think twice, and a third time, before pressing the blue “tweet” button. For entertainers that don’t want to think twice before going on that “Twitter rant,” in the words recited by Bette Davis: “Fasten your seatbelts, it’s going to be a bumpy night.”