Ladybrillers! I am excited to begin my first official fashion law entry for 2013 on Ladybrille with the Marilyn Model Management v. Constance Jablonski breach of contract lawsuit. Before we delve into the case, I must share with you all my excitement and happiness over the success of the first ever fashion law panel in Northern California. The event was held at UC Hastings College of the Law (Hastings) and was co-produced by my law firm, Ebitu Law Group, P.C. and the law school’s Communication & Entertainment Law Journal. It was and is an absolutely big deal both within and outside legal circles.
Beyond the honor of working with Hastings, especially as an Hastings alumni, to launch this historical event, the turnout was simply amazing. The event was supposed to begin at 6:00pm and end at 7:15pm. Instead, it went from 6-8:00pm and practically over 75 persons who attended stayed through it all! They were that engaged and interested in hearing more about Fashion Law. How exciting!
We had attendees from as far as Michigan. In addition, there were students from other Bay Area Law schools including the renowned UC Berkeley Boalt School of Law. The panelists absolutely rocked and I enjoyed listening to them, even as I moderated the panel. They were informative, witty, funny, down to earth and knowledgeable. The event was taped so as soon as the video is available, I will be sure to share it with the Ladybrille audience.
One final good news before we delve into the sizzling lawsuit today. Hastings has approved the first ever fashion law society in California, The UC Hastings Fashion Law Society. In addition, yours truly has also been named an advisor for the newly established fashion law society. I am proud to say my mentee Ashley Weiss is the force behind the fashion law society movement at Hastings.
For more information about the first ever Northern California Fashion Law Panel and to view pictures from the event, please visit Ebitu Law Group, P.C. website here.
Okay! Now, let’s delve into our first fashion law case of 2013 on Ladybrille.
Ladybrille models raise your hands if you know what it feels like to sign a contract with a modeling agency only to realize, later, that you would have been better off signing with a different agency? Let me paint the typical scenario for those who do not understand the realities of the fashion model.
Assume all your life you have wanted to model. You finally get your foot in the door and are excited beyond your wildest imagination when the biggest modeling agency( in your local fashion markets or in the primary markets such as New York) signs you up. Everything seems great! You sign your exclusive modeling contract with that big name agency, hopefully with the help of a fashion lawyer, but often not the case. They ask for a 20% commission from all of the monies you make from your modeling jobs that they will secure for you. It seems fair. You have done your research and that is the industry standard. As you become a sought after model, you know there is a possibility to renegotiate the terms of your contract to a 10-15% commission, albeit limited. You gladly sign away.
You can’t wait to begin cashing your large checks and of course hear compliments, all day, on how beautiful you are as makeup artists and designers fuss over you.
Your agent seems perfect and you are ready to start “like yesterday” to work with your agent to develop your career and image and have him/her help you book major advertisements, endorsement deals, tv commercials, all the major fashion week shows etc. Yay!
What eventually happens? Reality sets in as a myriad of issues emerge. First, you could begin with globe trotting on every runway but all of a sudden work seems to dwindle. In fact, it is a task to even get the opportunity to “go and see” so you can at least stand a chance of getting booked. You notice the newest girl in town, not you, now seems to get priority when it comes to the go and sees and she is booked at a much higher rate. Other issues may creep in varying from the quality of jobs you are afforded, conflict over your image brand/representation, dispute over advance fees paid to you and the over-recouped fees the agency is taking from your check. You notice other issues. For example, the agency gets 20% commission from you yet charges the clients you worked for an additional 20% commission that they pocket with zero dime to you. You also notice payment for your services seem to trickle in over six months later for work already completed. If you complain, the agency tells you they are willing to give you an advance payment but they will take another 3-5% commission when the client pays.
There are personality clashes with your booking agent which affects everything, especially your bottom line. In addition, you are just really confused why your agency keeps on deducting fees without notice to you for services it alleges it renders; of which you never consented to receiving and of which was never bargained in your contract.
What do you do? Usually, you begin discussing with your model girlfriends and colleagues your situation and express interest in wanting to jump ship. Once everyone confirms your feeling that something is wrong with the stories you tell them, you look to and often jump ship. The legal question then becomes, can you jump ship to another modeling agency without being slapped for breach of contract? What about the agency that signs you knowing full well you have an existing contract with another modeling agency? Can they also be held liable?
The above scenario brings us to our actual case and in fact takes us into the courtroom, a place I particularly enjoy spending my time.
The Brief Facts
Victoria’s Secret Model Constance Jablonski, who is from France and the face of Calvin Klein & Christian Dior, signed a modeling contract with Marilyn Model Management (Marilyn) in 2008. In 2010, her contract expired. In 2011, she chose to renew her contract for another three years making her newly signed contract up for expiration in 2014.
Nevertheless, in 2013, Jablonski is no longer signed to Marilyn. She is now signed to DNA Model Management, a direct competitor
What does Marilyn do? Marilyn sues in New York court. Marilyn alleges many causes of action including a breach of contract claim. The agency argues that Jablonski signing to DNA essentially crippled its business and they have suffered “irreparable” harm, think “I have fallen and I can’t get up” financial kind of harm.
Marilyn is asking for $3.3million in damages plus an injunction i.e. stop DNA Model Management from continuing with its contractual relationship with Jablonski.
What a mess, right? For me, however, it is also very exciting legal issues and an opportunity to demonstrate to the Ladybrille fashion community the need to ensure, throughout the fashion value chain, that you honor the agreements you enter into, whether they be oral or written.
Here is my prediction before I even get into my legal commentary and analysis. This case will settle. At this point the parties are probably already trying to work out settlement terms. While Marilyn has sent out a strong message that it is not to be messed with, it doesn’t help that all the media has emphasized is the fact that Marilyn says it will and has suffered “irreparable harm.” In legal speak, attorneys know that is routine language filed in a lawsuit where a substantial economic harm is alleged for a unique model talent. However, to the public, it seems like pretty bad business operations when a company relies on only one key employee/independent contractor to stay afloat. When that super star is down, the team goes down. There have got to be other players that can step in and make plays on the level that the star who is down has. So, it is bad publicity and image for Marilyn and they too should want it to go away.
I also would be very surprised if a judge forces (via injunction) Jablonski to work with Marilyn. The relationship is already damaged as it is and it makes it very difficult for Jablonski to try to work with Marilyn agency after this kind of lawsuit. Jablonski might just say screw it and return to France until her contract expires. I also think there is a high probability DNA knew that Jablonski was signed to Marilyn and the contract had not expired or that there could be issues of this nature. Certainly they should and probably hired a lawyer to do that basic due diligence.
I think they, however, assessed their risks and figured it was a risk worth taking considering what they stand to gain in the long run. If they deny such knowledge, they certainly will need to prove that up in court.
Speaking of court, let’s get into the courtroom and look at the claims, specifically the breach of contract claim. I will discuss the breach of contract claim from a California law perspective since I am licensed here in California.
My Legal Commentary & Analysis on this Breach of Contract Claim
Parties: Marilyn Model Management (Plaintiff), DNA Model Management, Constance Jablonski et al. (Defendants)
Industry: Modeling (Fashion Industry)
Law: Business Law/ Contract Law/Business Litigation
Legal Issues: For our purposes, breach of contract claim.
A breach of contract is, in lay terms, the failure to do what you said you would do, which ultimately caused injury (usually money damages) to the person who entered an agreement with you.
(MarilynAgency) Plaintiff’s Burden
To prevail in its breach of contract claim, Marilyn Model Management must show at a minimum that:
- There was a valid contract between Marilyn and Jablonski. This is essential. No contract, no breach. I expect Jablonski if the case proceeds to trial to attack even the validity of the contract given there seems to have been a gap from 2010 to 2011 when the second contract extending her initial term was signed. It would be an attempt to poke holes or question the validity of that contract but it may not fly.
- Jablonski failed to perform or announced an intent not to perform. Here she signed to another agency so easy to prove once we establish the validity of a contract.
- There was no legally valid reason for the lack of performance on Jablonski’s part.
- The failure of Jablonski to perform made it impossible for Marilyn to fulfill its obligations; and
- Marilyn has suffered damages as a result of the breach i.e. out of money etc.
What About Jablonski? Anyway to Play Defense on this One and Kick Back with those high heels we have seen her strut in on Victoria’s Secret runways?
Below are some Common Defenses to Breach of Contract Claims that are available to Jablonski:
- We never had a contract.
- The Plaintiff misrepresented the facts and but for that misrepresentation, the Defendant (in this instance Marilyn) would not have signed the contract; and/OR
- The contract was unconscionable. Think, “how on earth could anyone negotiate such unfair contract with Marilyn Model Management?”
- I was under duress when I signed
- The contract was fraudulently induced
There are more legal defenses but for brevity sake, I will have to stop now.
This is a very interesting case in the modeling world and I’d be curious to see and share with you all the outcome. I do not expect it to go to trial but that may depend on the parties, particularly Marilyn. If they are so hurt and believe as a matter of principle that you don’t give your word and not follow through, then we could very well see a legal battle played out in the courtroom. I highly doubt it.
That’s it from me on this.
Visit Huffington Post for the news report on the case.
Ms. Uduak Oduok is the Founder and Editor-in-Chief of Ladybrille® Magazine. She is also a Practicing Attorney and Partner at Ebitu Law Group, P.C, ebitulawgrp.com where her practice areas include Business Litigation and Fashion & Entertainment Law. She has counseled a range of clients from musicians, models, actors and actresses to designers on numerous areas of the law including contracts, business law, fashion and entertainment law, copyright, trademark i.e. intellectual property law. She can be reached at ([email protected]) to share/pitch your fashion law related stories for a feature on Ladybrille. All other inquiries, please visit the www.ladybrillemag.com/contact page for appropriate contact email.
DISCLAIMER: Nothing herein forms an attorney-client relationship. The legal commentary& analysis provided on Ladybrille is for informational purposes only and is not meant nor should be construed to be legal advice.
Ms. Uduak is best known as an advocate who uses the tools of media and the law to help creatives and businesses clearly articulate their true brand identities, and communicate it to the world through their products and services, to maximize profits. She is a lawyer, speaker, author, journalist, and recognized thought leader, and trailblazer for her work on Africa’s emerging global fashion and entertainment markets, and the niche practice of fashion law in the United States. She is also the founder and publisher of Ladybrille® Magazine, and an Attorney and Partner at Ebitu Law Group, P.C, where her practice focuses on Fashion, Business, & Entertainment Law and Trials. For more information about her, visit www.msuduak.com.