Morals Clauses and Ms. Spears

It was a tale made in tabloid heaven: Britney Spears's kid sister, star of the cable TV tween hit "Zoey 101," was pregnant at the age of 16! She was paid to tell the world in OK! Magazine. And her mom's book on parenting was suddenly delayed! While the tabs and the celebrity blogs gave thanks to the news gods, the story had a rather different impact in the executive suites at Viacom's Nickelodeon, which airs Jamie Lynn Spears's wildly popular show. After all, the star's pregnancy wasn't exactly in keeping with the program's squeaky-clean high-school fare. Would the suits try to spin her situation into a plot line? Fire her? Or hunker down and try to ride out the storm?

Studios typically try to guard against bad behavior--especially from their youngest stars--by loading up their contracts with so-called morals and behavior clauses; such provisions give the execs a legal out should they decide to cut ties. But does Spears have such clauses in her contract? And if so, would getting pregnant be a violation? Federal employment laws protect the rest of us from being discriminated against in the workplace, and certainly no business could get away with firing someone over getting pregnant. But the entertainment industry is different. An actor is hired based on his or her ability to portray a character, and if it's not in the script, a pregnancy can certainly create a problem.

In 1996, Aaron Spelling fired actress Hunter Tylo from "Melrose Place" after learning she was pregnant. According to Los Angeles attorney Gloria Allred, whose firm represented Tylo in her discrimination suit, her contract contained a clause referring to any material change in her appearance. "They said her pregnancy was a material change," says Allred. But the jury saw it as discrimination, and Tylo won $5 million against Spelling.

But the case of Spears's pregnancy is considerably more complicated, Allred says. Tylo was a married adult, while Spears is an unmarried minor, who says the father is her 19-year-old boyfriend, Casey Aldridge. (The pair reportedly split earlier this year, and it's unclear whether they plan to get back together now.) Depending on where the baby was conceived, Spears's pregnancy could qualify as a crime. She has lived in California for the last two years; under that state's penal code, any person who engages in an act of unlawful sexual intercourse with a minor (defined as under the age of 18) and is not more than three years older or younger than the perpetrator is guilty of a misdemeanor. But if the deed was done in their home state of Louisiana, Aldridge could technically face felony charges for carnal knowledge of a juvenile; under state law, a person must be at least 17 to legally consent to sex. At 15 or 16, the partner must not be more than two years older. It's unclear where Spears maintains her legal residence. She has said she plans to raise the baby in her home state. Obviously, getting pregnant isn't a crime, and it's highly unlikely that the case will be prosecuted, but it does complicate the matter, particularly as many of these morals clauses specifically refer to criminal behavior.

Details about Spears's contract have been hard to come by (neither Nickelodeon nor Spears's publicist returned calls seeking comment). But Nickelodeon may have a convenient out. The cable network appears to have made the decision to cut ties with Spears months ago. Production of the final season of "Zoey 101" wrapped in September, and with enough finished episodes to run through 2008, Nickelodeon doesn't have to worry about the problem of having a pregnant Spears appear in the show, or having to invoke a morals clause and risk a potential discrimination lawsuit. (According to wire reports, the network is considering the possibility of airing a special report on love and sex.)

To get a better understanding of the tricky legal landscape of entertainment employment, NEWSWEEK spoke with L.A. labor lawyer Anthony Oncidi of Proskauer Rose, who has represented studios and production companies in Hollywood for more than 20 years. Excerpts:

NEWSWEEK: How common are these moral and behavioral clauses in the contracts of actors?
Anthony Oncidi: They're quite common. I think that just about every contract with respect to talent tends to have a provision addressing behavior in some way. From a studio's perspective they certainly don't want to be embarrassed so they use them as a preventive measure but also as a way to cut ties with someone.

Are they more common when it comes to child or teenage actors?
I think they may be more prevalent among minors because they can find themselves in all kinds of situations that may be problematic from a production company's standpoint.

How are they written? In terms of language, how specific do these clauses get?
They're fairly generic, and usually identify categories of behavior that would cause embarrassment to that individual or whatever venture they're working on.

So would they include something like "You can't ride a motorcycle"?
Those kinds of restrictions are more insurance-driven. Production companies and studios buy insurance to prevent an accident from destroying the whole production, so that if someone gets injured then it's the insurance carriers that are on the hook. But even so, that's more of a behavioral issue than a moral one.

How vague do these morals clauses tend to be?
Some are more specific than others, but they usually fall along the vague lines of not doing anything that might bring about public disrepute, contempt, scandal or ridicule, or reflecting unfavorably on the network or studio. So yeah, they're pretty vague, but what that allows is the production company or studio to maintain maximum amount of flexibility without having to name all these shenanigans they [might] engage in, which is what any good lawyer would do.

But even when the actor is deemed to have broken the clause, the studio sometimes still chooses to honor the contract, right?
The employer's interest is usually in trying to maintain control of the character, but they certainly have a brand and product to consider.

This year, Vanessa Hudgens of Disney's "High School Musical" got in trouble when some nude pictures of her surfaced on the Internet. Yet Disney chose to keep her on the show. Does that mean she didn't have a morals clause in her contract?
No. In fact, I'm sure that she did. But again, Disney has an interest in keeping her on that show, which it probably saw as outweighing the damage done by those pictures.

In terms of alleged criminal behavior, how binding are they? Without a conviction, are studios still able to use things like arrests as grounds for breach of contract?
In California there is a very strict rule that an employer cannot take adverse employment action based on an arrest that has not led to a conviction. So an arrest might run afoul of a morals clause, but you have a statutory provision that still protects them as it does any other employee.