Jonathan Pink — Entertainment, Internet and New Media Partner at Lewis Brisbois, LLP Rotating Header Image

Twitter Jitters

Here is some information to pass on to clients or incorporate into your drafting of iron-clad agreements.

 

Turns out that an ever-increasing number of entertainment deals now include contract language that is expressly intended to curb the use of social media by the other contracting party. According to an article in today’s Hollywood Reporter, the goal of this language is to plug “leaks of disparaging or confidential information about productions via the likes of Twitter, Facebook and YouTube.”

 

According to the article, Disney has used such a clause to forbid confidentiality breaches on Facebook, Twitter, and “any other interactive social network or personal blog,” and DreamWorks has one that prohibits the making of any statement via “a social networking site, blog or other Internet-type site” prior to the studio’s own public release of the information. Another studio agreement is broadly drafted to prohibit commentary on “all platforms, including voicemails, blogs, Internet sites, chat or news rooms, podcasts or any online forum,” and at least one talent deal referenced in the article contains a nondisparagement provision prohibiting the actor from “bashing any element of a production with social media.”

 

This once again highlights the potential for both positive and damaging information (truthful or otherwise) being disseminated via social media. It also points out the potential hazard this new avenue of expression poses for our clients, and suggests some steps we may take to protect them. In short, while the Internet has given a voice to millions, it has also given them an audience.

 

Eliminating the traditional “gate keepers” to the public dissemination of information can be great or it can be problematic. As lawyers working in the Internet space, we need to be aware of this, and find ways to shield our clients from the potential dangers. Because of this, we should consider following the lead of the networks and studios by drafting Internet/social media-specific confidentiality clauses in all appropriate agreements. (NDAs, employment agreements, IP licenses and settlement agreements come immediately to mind). If you’re thinking, “doesn’t the confidentiality clause I currently use already cover this?”, the answer is “maybe.” But as those who litigate contracts know, sometimes having the additional, highly specific provision is better. California has a statute that says the specific controls over the general, and I suspect other states have something similar. So if we want to expressly prohibit or limit specific conduct — such as the on line bad-mouthing of our clients — it is better to take the lawyerly “belt and suspenders” approach.

 

Which reminds me: I once saw a man who was actually wearing a belt and suspenders. I don’t think he was a lawyer, but maybe he should have been.

Jonathan Pink is a business lawyer with a specialty in copyright, patent and trademark litigation. His clients include many of the biggest names in the automotive and motorcycle aftermarket parts industries, and one of world's largest media companies. He has extensive experience in a wide range of intellectual property and commercial disputes including breach of contract, fraud, and the misappropriation of trade secrets. He can be reached at 949.223.7173, or at jonathan.pink@bryancave.com, and his full profile can be viewed at www.bryancave.com.

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