'Tweet, tweet,' went the rock star

By Caroline H. Mankey

Just a few years ago it seemed that a celebrity's biggest faux pas (or marketing sensation, depending upon one's perspective) was the public release of a sex tape or risqué photos of the celebrity romping naked with someone other than their spouse. Granted, said celebs perhaps should have been more mindful of the nearby cameras before shedding their designer duds, but we mostly forgive them and blame the embittered ex who sold the film to the tabloid or the pesky paparazzi who slipped passed extensive security and privacy precautions.

Lately, the more common scandals surround celebrities who have created public relations and even legal nightmares for themselves by posting offensive comments or provocative photos on Twitter and other online social media. Olympic athletes from Greece and Switzerland were sent home from the summer games in London in 2012 for racist tweets. Anthony Weiner's tweeting of a suggestive picture of himself led to his resignation from Congress. Actress Amanda Bynes may have just tweeted herself out of a career last year, tweeting about her DUI, her marijuana arrest, and making verbal attacks on Rihanna and Jenny McCarthy, both of whom she told were "ugly." Then there is Gwyneth Paltrow's insipid blog, www.goop.com, in which she preaches elitist child-rearing, health, beauty and lifestyle advice, which provides endless fodder for critical and sharp-tongued bloggers.

But no celebrity has caused more legal problems for herself through social media than Courtney Love, the front-woman of the alternative rock band Hole, and widow of the late great Kurt Cobain. Not only has Love's own daughter tweeted that Twitter should ban her mother, but Love has now been sued three times for defamation via social media. The first suit was filed by fashion designer, Dawn Simorangkir, to whom Love paid $430,000 to settle her claim that Love had tweeted defamatory comments about her. Love was then sued by her own former lawyer, Rhonda Holmes, for tweeting that Holmes had been "bought off." Most recently, Love was sued again by Simorangkir for allegedly defamatory comments that Love made about her on the social media site Pinterest and in an interview with Howard Stern.

Holmes's case against Love made it all the way to a jury last week. Love's two-fold defense to the claim, which required Holmes as a limited public figure to prove malice, was that she believed the statement to be true at the time that she tweeted it, and that she thought she was sending the message privately and that she immediately deleted it once she had discovered that she had tweeted it publicly. Apparently, Love's testimony was convincing because the jury rendered its verdict in favor of Love. Love does also happen to be an accomplished actress, who very convincingly played Larry Flynt's now-deceased wife Althea in the 1996 motion picture "The People vs. Larry Flynt," which coincidentally portrayed Flynt's hard-earned victories in free speech jurisprudence.

Does the jury's verdict mean that Love and other celebrities can now tweet, pin and blog with impunity?

Social media has become a mandatory mode of modern day communication, particularly for celebrities, athletes, politicians and anyone with a following. Its advantages are also its disadvantages. For celebrities, it allows them to broadcast messages to millions of fans and followers in "real time," without the cumbersome and homogenizing contributions of agents, managers, lawyers, public relations advisors, and studio and network executives.

The immediacy and low cost of social media make it a tremendously valuable platform for advertisers and celebrities alike. Like in any other form of media, celebrities can earn many thousands of dollars for endorsing brands on Twitter and other social media. Many traditional talent agreements affirmatively require the talent to post on social media about their current movie release or other project, just as they require talent to participate in other promotional activity. Of course, partnering with a celebrity for social media messaging put brands' images and reputations in the hands of celebrities who may be reckless or simply unmindful of the potentially adverse consequences of an impulsive tweet. Brands can minimize this risk contractually by retaining complete or partial control over the specific content of the posts, retaining approval rights over the content, delegating posting obligations to a designated marketing professional, and/or including a "morals clause" in the talent agreement that allows the brand to terminate the agreement if the celebrity engages in criminal activity or other morally reprehensible conduct.

A morals clause will not prevent a celebrity from making a scandalous remark, and might not require the celebrity to disgorge any fees paid prior to the violation, but will generally allow the brand to terminate the endorsement agreement and salvage its reputation (while riding the publicity wave) by repudiating the misdeeds of the celebrity. Recent examples of the exercise of morals clauses include the widespread termination of corporate endorsement and talent agreements with Lance Armstrong and Paula Deen.

One drawback of morals clauses, however, is that they are often extremely broad and ambiguous, which can render them ineffective or lead to litigation. Pittsburgh Steeler Rashard Mendenhall posted several controversial comments on Twitter the night of Osama Bin Laden's killing, including, "What kind of person celebrates death? It's amazing how people can HATE a man they never heard speak. We've only heard one side." He followed that with, "We'll never know what really happened. I just have a hard time believing a plane could take a skyscraper down demolition style." See Mendenhall v. Hanesbrands Inc., 856 F. Supp. 2d 717, 720 (M.D.N.C., 2012). Within 48 hours, athletic apparel brand Champion invoked a morals clause to terminate its endorsement deal with Mendenhall. Mendenhall then sued Champion's parent company, Hanesbrands Inc., for breach of contract in federal court in North Carolina. Although Mendenhall's claim survived Hanesbrands' motion to dismiss, the case settled before the court could make any substantive rulings on the force and effect of the morals clause.

All too aware of the risks inherent in this direct conduit between celebrity and the public, some studios and networks are imposing contract terms in their talent agreements that pertain expressly to social media, and that impose strict limitations or guidelines about what information is acceptable for posting and what is not. Of particular concern is the confidentiality of storylines, plots, cliffhangers, reality show winners, casting, awards and other time-sensitive information. However, all the contractual protections and guidelines in the world cannot "unring the bell," as when Miley Cyrus dedicated her first Instagram post to all the fans who had crowned her number one in Maxim's Hot 100 - before Maxim had released the list.

Yet it's not just the advertisers whose reputations are at risk through celebrity social media activity. Celebrities also face a risk of diluting and devaluing their publicity rights by saturating the market with commercial endorsements. Not only is it technologically impossible to claw back private or confidential information about a celebrity that ends up online, but often even the law will not protect it as it is likely to be found to be newsworthy (Maheu v. CBS Inc., 201 Cal. App. 3d 662, 675 (1988) (holding that information derived from private letters between Howard Hughes and his aide of 14 years was clearly newsworthy) or, as a Florida district court judge noted in Hulk Hogan's case against Gawker for publication of excerpts of his sex tape, because copyright law does not protect privacy rights (Bollea v. Gawker Media LLC, 913 F. Supp. 2d 1325, 1330 (M.D. Fla., 2012)).

In fact, a celebrity who regularly tweets about mundane daily activities may find that he has turned his personal life into a matter of public interest, thereby protecting a media outlet from liability for misappropriating his right of publicity. This is precisely what happened when NBA star Gilbert Arenas tried to sue the producer of the reality show "Basketball Wives Los Angeles" to prevent his ex-girlfriend and mother of his four children from appearing on the show. Arenas v. Shed Media U.S. Inc., 881 F. Supp. 2d 1181, 1192 (C.D. Cal., 2011).

Just because Courtney Love prevailed against her former lawyer's claim of defamation does not mean that celebrities or any other speakers have immunity for careless, reckless, or malicious social media posts. Long-standing statutory and common laws of contract, privacy, defamation, copyright, and right of publicity apply equally to social media speech as to any other. Just like the rest of us, celebrities too should think before they post - and never, ever post drunk.

Caroline H. Mankey is an attorney with Cypress LLP. She can be reached at caroline@cypressllp.com.

<!-- 'Tweet, tweet,' went the rock star -->