Gilbert Gottfried is looking for gainful employment, and Aflac is looking for a new voice-over man. Gottfried was terminated Monday as the voice behind Aflac’s iconic duck when he tweeted jokes and one-liners over the weekend about the recent crisis in Japan that Aflac determined to be tasteless, inappropriate and insensitive. “Gilbert’s recent comments about the crisis in Japan were lacking in humor and certainly do not represent the thoughts and feelings of anyone at Aflac,” the company, which does 75 percent of its business in Japan, said in a statement.  “There is no place for anything but compassion and concern during these difficult times.”

While a celebrity getting fired for inappropriate conduct isn’t a novel concept, what makes this specific firing interesting is the social media component. Social media has the immediate effect of amplifying a conversation, and turning one twitter posting (aka, a tweet) into thousands of recycled and re-tweeted postings within seconds.1

Aflac, as expected, invoked the morals clause under Gottfried’s contract, as the basis for his termination. While morals clauses are often the most difficult and uncomfortable provisions to negotiate in celebrity talent contracts, this recent event and several others of late demonstrate their indispensability. In that spirit, advertisers should take away at least three important points:

  • Make sure your morals clause covers anything a celebrity does, says, writes or posts in any medium, including digital (it may be even be a good idea in this day and age to have a specific social media reference within the clause)
  • In addition to the usual suspects like illegal or publicly obscene or indecent acts, be sure the morals clause is broad enough that it also covers things like: (i) the celebrity conducting him/herself with due regard for public morals and decency, (ii) non-disparagement of the advertiser, (iii) behavior consistent with the advertiser’s dignity, high standards and public image, and (iv) any other events that would have a materially adverse effect on the advertiser’s reputation. Equally important, make sure that any determination as to whether or not a celebrity has violated the morals clause is left up to the advertiser in its sole (i.e., subjective) discretion, rather than applying some reasonable-person standard that will take three years to resolve in the courts.
  • Put in place a social media policy before it’s too late, and make sure to cross-reference the policy in your celebrity agreements. Without a carefully crafted and prudently enforced social media policy, advertisers will be increasingly faced with these kinds of rogue incidents, and are even more likely to be held accountable for the acts and omissions of their employees, consultants and celebrities.

The Gottfried happening may have been best summarized by John Diefenbach, Chairman of MBLM in New York, when he remarked, “The liberties that have been created by the Internet, by social media” must be balanced against “the idea that there’s an accountability and a responsibility if you’re being paid by someone to do a job.”

If you have questions or concerns about celebrity agreements or social media policies, feel free to contact Adam Snukal or the attorney within Reed Smith with whom you regularly interface.

1   A tweet was the basis of another high-profile termination last week, this time an agency agreement, when an account representative from New Media Strategies, the agency entrusted with managing the Twitter account for Chrysler, tweeted, “I find it ironic that Detroit is known as the #motorcity and yet no one here knows how to #*@& drive.”  The tweet was taken down, the employee was terminated, and Chrysler announced that it would not continue to use the services of New Media Strategies.