When Kate Moss’s alleged substance abuse was recently splashed across the national press, brand owners using her image and name queued up to pull the plug.
Topic: Personalities
Who: Kate Moss, H&M and other brands
Where: A West London recording studio and the Daily Mirror
When: September 2005
What happened:
The Daily Mirror published grainy pictures of the supermodel Kate Moss apparently sharing lines of cocaine with a group of friends at a studio in West London where her boyfriend Pete Doherty was recording.
Following the initial report the tabloid press quickly swung into action, putting the spotlight on the various contracts Ms Moss has (or rather had) with various cosmetics and fashion brands for her image and name to appear in their advertising. And despite initial suggestions to the contrary, fashion company H&M announced within a few days that it was cancelling a planned campaign featuring Ms Moss.
Since then further brands have reportedly dropped Ms Moss from their advertising campaigns, including Chanel and Burberry, whilst it has been revealed that the model will also face a police investigation into the allegations of taking an illegal Class A drug.
On a more positive note, however, Ms Moss may have avoided further contract losses by releasing a statement through her agency Storm apologising for her actions, with other brands such as Rimmel London said to be standing by her.
Disgraceful behaviour?
Signed contracts tend to be legally binding, so how have H&M – and any other brands who similarly want to avoid unwanted associations with Ms Moss's alleged substance abuse – managed to extricate themselves from binding commitments?
Although we are not privy to the details of H&M's contract with Ms Moss, from their point of view it is to be hoped that the agreement included some form of "disgrace" provisions, so-called as they apply should the talent in question conduct themselves in such a manner that may bring themselves or the brand they are advertising into disrepute.
These provisions tend to use deliberately woolly wording in order to try and cover off as many potential scenarios as possible where the brand may feel uncomfortable being associated with the talent, without the talent necessarily committing or being convicted of breaking the law.
Typically such disgrace provisions will allow the brand owner to terminate the contract immediately in such cases without any notice period, and sometimes they are drafted so that they will also permit the brand owner to recover their wasted costs spent on producing advertising which won't be used from the talent. Where for example television commercials have already been shot and produced, such costs may not be insubstantial.
In the current situation it seems likely that H&M's contract probably included a relatively broadly drafted disgrace provision that has allowed them to cancel their contract with Ms Moss with immediate effect, notwithstanding the fact that (at this stage at least) Ms Moss has not been convicted of any offence.
Whether or not H&M have incurred wasted costs in preparing the campaign which has now been binned has not been disclosed, but there is also the risk that H&M may have a contractual right to claim such costs back from Ms Moss, which could make the contract loss even more expensive for her.
Why this matters:
This is not the first time a celebrity has been caught in an embarrassing and/or illegal situation, and no doubt it will continue to happen on a not too irregular basis.
It is therefore essential that brand owners ensure that any agreements they enter into for talent to lend his/her name and/or image to their advertising allows them to swiftly terminate the arrangement in appropriate "disgrace" circumstances, to minimise any negative associations with their brands that may be caused by the talent's behaviour.
