Fashion and media companies are increasingly relying on a handful of legal tactics to keep at-times ugly practices out of the spotlight. Non-disclosure agreements (“NDA”), non-disparagement provisions, and threats of defamation-centric lawsuits, in particular, are proving increasingly commonplace in order for industry giants to keep their creatives quiet.
Yes, the use of NDAs is spreading across the industry much like the previous wildfire-spread of the non-compete and non-solicitation clauses (the latter of which were previously used to keep high-level employees from jumping ship to competing companies and taking a slew of both colleagues and company know-how with them).
From Nicolas Ghesquière to Lucinda Chambers
The recent Lucinda Chambers interview that was published on fashion journal Vestoj’s website earlier last week proved an apt reminder of this phenomenon. While Ms. Chambers – British Vogue’s former longtime Fashion Director – has not been sued (yet) in connection with the striking statements she made about her former employer, that does not mean Conde Nast is unable to initiate formal legal action.
The saga reeked of fashion industry giants’ often dictator-dictated relationship with their increasingly taxed and ever-disposable (something Chambers speaks to in her interview) creatives. It also presented a potential legal mess – from Vestoj’s temporary removal of the article from the web last Monday to the subsequent amendment of the article to remove material that Conde Nast’s legal team alleged was “defamatory.”
In fact, the Vestoj/Chambers/Conde Nast debacle harkened back to the legal fall out that followed a strongly-worded interview that Nicolas Ghesquière gave to System Magazine on the heels of his departure from Balenciaga in 2013.
In response to statements – such as “I began to feel as though I was being sucked dry, like they wanted to steal my identity while trying to homogenise things.” – Balenciaga’s parent company, Kering, filed suit against Mr. Ghesquière. This Paris-based conglomerate alleged that he breached his contract with the brand, particularly the agreement to refrain from making statements that could undermine the image of Balenciaga or Kering.
Despite these two high profile conflicts, such matters tend to be few and far between. In the fashion industry, there have not been many – or really any – other prominent examples of what happens when a non-disparagement clause (a contractual provision that restricts an individual from taking any action that negatively impacts an organization, its reputation, etc.) is breached. The same can be said of the use of force – by way of the threat of a defamation lawsuit – when objectionable information is published.
However, that does not mean that fashion’s efforts to insulate itself from bad press are not alive and well. It also does not mean that NDAs, non-disparagement clauses, and strongly worded cease and desist letters citing defamation are not common strategic moves utilized by the fashion industry to keep disgruntled creatives and/or journalists at bay.
In fact, an absence of lawsuits in this realm very well might suggest that these legal clauses and threats of litigation are actually proving effective. (It also might be the case that legal matters are initiated behind closed doors and quietly settled without the need of a court of law).
Tell One, Tell All
The closest thing to as damning a tell-all as Vestoj’s “Will I Get a Ticket?” came last year when the Observer posted an article, entitled, "Elle on Earth," which was penned by Jacques Hyzagi, who argued that Elle magazine’s top editors ruined his interview with Comme des Garçons mastermind Rei Kawakubo.
While neither Hyzagi nor editors for the Observer or Elle responded to requests for comment, it does not appear - somewhat shockingly - as though Elle’s parent company Hearst Communications threatened the Observer or Hyzagi with a lawsuit in connection with the article, if for no reason other than that the article remains published – in its original from – to this day.
Nonetheless, the industry did some damage control by banding together against Hyzagi. “I was attacked in a very vicious way. I’m insulted every five minutes,” Hyzagi told the Guardian shortly after the article was published. “I was getting killed on Twitter,” he told the Hollywood Reporter. “Why are people taking the side of the powerful figures I attack? There is a rush to conformity here I find puzzling.”
It is not surprising that such damning interviews do not happen more frequently, given the iron-clad contracts and often strongly worded cease and desist letters that come hand-in-hand with dealings with the industry’s most established brands. Pair that with the larger pressure for publications to avoid alienating or displeasing advertisers, and for individuals to just keep quiet in order to remain employable, and it becomes perfectly clear why these take-down, tell-alls are rarer than diamond-encrusted Himalaya Birkin bags.
NDAs: The New Scare Tactic
Regardless, non-disparagement clauses and NDAs – two different types of legal provisions – are age-old tricks in fashion. We have seen – or at least heard about – the inclusion of NDAs agreements in fashion folks’ standard employment contracts, as well as their use in less traditional settings.
One of the most straightforward uses of NDAs is aimed at maintaining a business’ competitive advantage and/or propriety information. In fashion, this can mean avoiding the spread of collection-specific information before a collection’s grand unveiling. For example, Louis Vuitton debuted its collaboration with Jeff Koons to editors in Paris for its Fall/Winter 2017 womenswear show in March. In doing so, Louis Vuitton – according to TFL sources – required editors to sign away their ability to write about the collaboration, as Vogue was already granted the exclusive privilege to cover it first.
The purpose of the NDA, however, is not merely limited to efforts to preserve-the-mystery of a collection. In some cases, such an agreement may be put into place to keep designers/creative directors’ antics under wraps. Diva-like behavior – paired with the desire to debut exclusive content on Keeping Up with the Kardashians – is likely the reason rapper/designer Kanye West makes extremely widespread usage of NDAs (think: friends of Yeezy employees are bound by NDAs).
West made headlines a couple of years ago when it was revealed that West’s team forced the models that appeared in his Spring/Summer 2016 show to sign a contract in which they promised to refrain from disclosing just about any information in connection with the show, West, or any of his famous family members. London–based publication, The Mirror, published an article on the matter, with a source calling West’s specific runway show NDA “ridiculous and totally over the top.”
That same source further noted, "Kanye hacked off some really high-profile models by asking them to sign the agreement, particularly because it stated that he could sue them for up to $10 million if they spoke out about him.”
Some will also remember that former Yves Saint Laurent creative head Hedi Slimane was similarly notorious for his use of NDAs.
Is This Really Necessary?
Such widespread utilization of these provisions in fashion poses the question: Is this really necessary? And regardless of the need – or lack thereof – for non-disparagement clauses, NDAs, and oftentimes very strongly worded cease and desist letters, maybe the more compelling question is this: What is the prevalence of such legal scare tactics doing to the availability of information in this industry?
If the instances referenced above are any indication, the current use of these legal provisions overtly limits the free flow of information – largely because individuals (particularly those within the Kanye camp and those tied to fashion’s biggest conglomerates) are terrified of being sued for violating the terms of these provisions.
While there is indisputably merit to the prevention of trade secret protected information – such as the confidential business information which provides a company with a competitive edge – the industry’s reliance on these clauses, paired with the liberal use of cease and desist letters citing defamation, might be going a bit too far. Arguably, the industry is only hurting itself with these overwhelming attempts to limit the spread of any unseemly information.
It is hardly a secret that in 2017, fashion is largely out of touch. Or as Ms. Chambers put it, “irrelevant” and without “the authority [it] once had.” But by working so vigilantly to scare and silence some of its own greatest assets – its oft-underappreciated creatives and the fashion press – and to shield itself from any form of criticism, constructive or otherwise, it is markedly difficult to see how fashion will ever grow or be relevant again.