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.”

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