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Hollywood’s Double Take on Social Media

WHAT DO A DUCK, a car, an elephant, and a little bluebird have in common?

They’ve all caused an uproar in Hollywood that may well change the world of celebrity endorsements forever – and not necessarily for the better.

By now, you’d have to be living in Antarctica not to have read about insurance giant AFLAC firing Gilbert Godfried, the voice of the AFLAC duck, over insensitive jokes he made on Twitter following the Tsunami and its aftermath in Japan. The comedian simply went too far for the company’s taste and off to pasture went Godfried and his quack.

But did everyone also notice in the last year how Godfried was not alone in his insensitivity and more so how it’s not just the celebrities who are hired by companies but also the executives who hire them that that are guilty of Tweetocide?

In Australia, Stephanie Rice, Olympic Gold Medal swimmer turned spokesperson for Jaguar, tweeted a decidedly homophobic comment after her team beat South Africa in a swimming tournament. While she later gave a lame apology for what she tweeted, it was too late and she was summarily dismissed as a Jaguar spokesperson. She learned the lesson that what you may say in private or believe in your own mind does not belong on Twitter (or anywhere else for that matter).

And let’s not even get started with the deluge of stupidity tweeted by Charlie Sheen as he journeys through his final fifteen minutes of fame. Sure, it’s nice to have millions become your followers. But if they’re following just to witness a crash, one has to wonder what goes through the mind of folks like Charlie Sheen, Kim Kardashian (and her rant over a cookie diet that bought her a lawsuit), and those ever vocal English soccer stars who seem unconcerned over being fined by their league over unfortunate tweeting.

But it isn’t just the celebs who are causing the ruckus and forgetting their manners on Twitter and other social media platforms as they talk to their “friends”.

Take, for example, the aftermath faced by big game hunter Bob Parsons, CEO of GoDaddy (the internet domain name seller) after he posted a vacation video of his successful hunt for an elephant in Zimbabwe, complete with a view of him standing astride his dead catch. While he later defended his hunting prowess by saying it was necessary to cull the herd for the well being of farmers
and that “Each year I go to Zimbabwe and hunt problem elephant. It’s one of the most beneficial and rewarding things I do.”, the uproar was not stifled.

The video was eventually pulled off You Tube but isn’t too hard to find on other sites with a few mouse clicks. This all earned him PETA’s “Scummiest CEO of the Year” and allegedly caused GoDaddy to lose over 20,000 domain name maintenance accounts when competitor NameCheap launched a campaign to donate $1.00 to Save the Elephants for every account moved from GoDaddy to NameCheap. Parsons also reportedly killed a Jaguar on the hunt. There must be a problem in Zimbabwe too.

But what does all this mean to corporate counsel?

One thing to do if you’re hiring a celebrity endorser is to be certain their contracts include a “morals clause” that permits termination of a contract if the endorser decides to use Twitter, Facebook, LinkedIn, You Tube, etc. to tweet, post, or upload offensive comments and materials.

Know, however, that celebrity agents are well aware that their famous clients are apt to say the craziest things as their real personalities are revealed. So they’re very careful not to let contracts be terminated for bad behavior.

Instead, the company who hired the celebrity can only pull the advertising while they continue to cut checks. That hurts. So include a serious morals clause in every contract and if the agent objects, you’ve got a litany of recent examples to show why your concern is real. A good one might read, “If Artist has committed or commits any act which is a felony, or a misdemeanor of moral turpitude, or commits an act which offends the community or any segment thereof and/or public morals and decency that may, in the reasonable judgment of the Advertiser, cause a diminution in the value of the Advertiser’s commercial association with Artist and which is of sufficient magnitude to require, for commercial reasons, the discontinuance the Commercialization of Artist’s Persona hereunder, then Advertiser shall have the right to immediately terminate this Agreement on written notice to Artist.”

While ancillary provisions need to be added, it’s this kind of broad clause that’s necessary in today’s social media world.

Then there’s the problem of getting some celebrities to cooperate in an advertiser’s marketing program that includes posting comments from the celebrity, whether as tweets or more lengthy comments on other social media sites. Often, an agent will propose that the advertiser write the tweets and submit them to the agent for approval by the celebrity before they’re posted. After
all, celebrities are so busy with their own tweeting that they simply don’t have the time to deal with tweets supporting their endorsements.

But beware. While that may be a business solution, it may also require disclosure that the tweets were pre-written and not necessarily the true thinking of the celebrity. Under the Federal Trade Commission’s Endorsement and Testimonial Guides, if you put words in someone’s mouth or keyboard that are not their own, you’ve got to tell consumers. That doesn’t make for very persuasive copy. So tell agents that you’ll give the celebrity some talking points you hope they’ll include in tweets and posts and reserve the right to approve whatever they write.

Now the reverse. The Hollywood community was up in arms following Bob Parsons’ posting. A number of celeb sites opined whether stars should boycott GoDaddy. Conversely, the view also seems to be that what’s good for the goose is good for the gander and that celebs should be permitted to terminate endorsement contracts (and receive all the compensation promised) if the
company’s executives behave badly.

As some have asked, is it good for GoDaddy endorsers Danica Patrick and Jillian Michaels to be associated with the killing of elephants? This so-called “reverse morals clause” is nothing new and rarely finds its way into endorsement contracts. But that may change as posting happy CEO’s can’t seem to help themselves with controversial statements. Alternatively, agents will insist on a reverse morals clause to counter the advertiser’s request for one, hoping to reach a compromise where both are dropped from an agreement. That’s a mistake. You’re paying. Insist on a one-way clause covering the celebrity and not company executives.
Few, if any, agents will walk away from a deal over a reverse morals clause.

Nonetheless, you really should try to control your CEO’s keystrokes and, for that matter, any of your suppliers as learned by Chrysler when one of its suppliers used the “f-bomb” on an official Chrysler site.

But how about those celebrity Tweets reported last week on Huffpost… More on that will have to wait for another column.

Doug Wood, We Expert

Reprinted from Corporate Counsel, http://www.law.com/jsp/cc/index.jsp

Copyright 2011. ALM Media Properties, LLC. All rights reserved.

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