Let me start off this Fashion Law legal drama with a disclaimer.
First, I know Kelly Cutrone quite well and have worked with her over the years, covering many of her national and international clients’ shows. Cutrone is fabulous and fierce. I met Cutrone when she was really just beginning her agency, People’s Revolution, and her focus at the time was representing international brands that were wildly successful in their countries but were looking to break into the US market.
In that capacity, I snagged an exclusive and first USA interview with India’s Sabayasachi Mukherjee, her client, for one of the top fashion publications I was writing for at the time, Fashion Wire Daily. That story ended up being syndicated everywhere.
Since then, we have worked on various clients (in my Journalistic capacity) and I enjoy attending the shows she produces and of course seeing her and her clients.
Second, on the flip side, I also know David Tlale, a rising South African brand who showed, for the first time, solo, last year at Mercedes Benz New York Fashion Week.
I have brought exclusive interviews to you all here on Ladybrille with David Tlale and also covered his work over the years. He is a very talented designer in the ranks of Marc Jacobs, Michael Kors and the likes in his country of origin, South Africa.
Did I expect this two to bump heads for the legal drama that has just ensued ? No. But, here we are and it is an ugly mess both for Kelly Cutrone, I believe, and David Tlale.
The Legal Drama/Issue
“SHOWDOWN: Fashion show producer People’s Revolution has cut ties with South African designer David Tlale, whose show it was producing. The show will still go on at 9:30 a.m. today at the Box in Lincoln Center. Kelly Cutrone, owner of People’s Revolution, said she resigned because her agency didn’t get paid. They had agreed that People’s Revolution would be paid 50 percent of show fees upon signing, and the remainder of the deposit 48 hours before the show. As of Wednesday, she had not been paid any of her $15,000 fee, she claimed.
She said she told Tlale Wednesday that “if you don’t honor your agreement, you’re no longer in our care,” and they would resign immediately. She said she began e-mailing guests that People’s Revolution was no longer affiliated with the fashion presentation.
Reached for comment, Tlale told WWD, “It’s not about me not wanting to pay them. The payments were delayed from my side. They were going to be effective today, but she pulled the plug. She was not willing to wait. We were going to make the entire amount today.”
Tlale, who will be showing for his third time in Lincoln Center, said he has already paid IMG for the space. He said he contacted the stylist, makeup people and casting agent when he got word that People’s Revolution was pulling out and asked them to continue helping him. “What really has changed is our relationship with People’s Revolution. It was my first time, and one of those lessons learned.” So what was the lesson learned? “You have to learn how they work, to pay in advance. I’m coming from South Africa and trying to build a brand in New York. I wanted to work with People’s Revolution, but it never worked out.” -WWD
WHAT DAVID TLALE & HIS TEAM VISTA KALIPA SENT ME
For immediate release
The show goes on: David Tlale sets the record straight
Johannesburg, South Africa (05 September 2013) – South African designer David Tlale responds to a misleading statement issued by the US-based PR agency, People’s Revolution, who recently pulled out of his New York show.
Run by the sensationalist and controversial Kelly Cutrone, People’s Revolution issued a statement to all fashion media stating that they are pulling out of the Tlale show citing, “we have not been paid.”
“This is not an issue of ‘non-payment’, but merely an egotistical, impatient diva publicist who demands full payment 48-hours before delivery of the services. The DT fashion house has taken a universal position with all of its suppliers to settle the full amount with them, once their services have been rendered and all their other suppliers for this show have been sympathetic to that principle,” says Vista Kalipa of On-Point PR, David Tlale PR firm in South Africa.
Not one to be deterred by unnecessary controversy, Tlale says the show goes on:
“It is rather unfortunate that People’s Revolution have opted to embark on an attempt at a smear campaign, because we were looking forward to working with them. I can assure you that the David Tlale show will go on as scheduled, with all original suppliers still 100% behind the brand,” says Tlale.
The David Tlale show at Mercedes-Benz New York Fashion Week is made possible by Brand South Africa, with make-up supplied by MAC Cosmetics, show production choreographed by Jan Malan of Umzingeli Productions, shoes by Europa Art Shoes (South Africa), models scouted by Karen Lee Group and other credible suppliers playing important roles.
Fore more information on the David Tlale show, scheduled for 9.30 am at the Box, Lincoln Centre, please contact:
On-Point PR | Vista Kalipa | email@example.com
MY FASHION LAW AND BUSINESS ANALYSIS ON THE ISSUE
1. RESPECT THE BUSINESS LANDSCAPE AND CULTURAL DIFFERENCES WHEN YOU EMBARK ON INTERNATIONAL SHORES.
First, I say this often to African designers and entertainment talents with an interest in doing business in the USA. Folks, there is just a very weird concept that you can come into foreign land, bypass industry people of African heritage who know how the business works, go it alone and expect not to fumble. I would not dream of going to South Africa or any other country, and just believe I can somehow get to where I am going without understanding the local market, liasoning with persons of African heritage with the experience or insight to assist me, professionally, with my venture. Beyond this basic requirements, I would not dream of doing business in a foreign country without a foreign local attorney, with industry knowledge, to assist me.
Here, given the facts reported on both sides, both appear lacking. It appears Tlale did not have that buffer to help him navigate the US market and he is left with a bad reputation and an ugly mess in a foreign land. Not a good look.
2. UNDERSTAND AMERICANS HAVE CULTURAL BIASES THAT IS VERY HARD TO OVERCOME WHEN YOU ARE AN AFRICAN DOING BUSINESS IN AMERICA.
Much love to Kelly but like her, I cut to the chase on and offline and I am a straight shooter in my dealings with people. There is no way in the world Kelly Cutrone would pull this nonsense on a Marc Jacobs, Michael Kors or any American designer for that matter, small or large. No way. If she did, it would be bad for her image and she would be seen to be very inflexible and you can bet the industry and Michael Kors and his people would not be too happy to do business with a woman that can just screw you over, just because the remnant payment is yet to be wired in to her. Kelly would have worked something out. Also, if she pulled out, she would not send releases to the media/or speak with the media, or send all those letters/emails telling everyone she is no longer involved in the production. The guy paid you half the money. It is not like he absconded for crying out loud.
For African designers and entertainment talents doing business in the USA, you have to be tuned into this fact when you do business here in the USA.
3. DAVID TLALE, THIS IS BUSINESS, IF YOU CAN’T TAKE THE HEAT, GET OUT OF THE KITCHEN.
While I say that Kelly would not pull this move on a Michael Kors, let me be unequivocally clear. This is business. Vista Kalipa (Publicist) and David Tlale, I am appalled at your press release and your excuse. Kelly has absolutely no obligation to accommodate your internal policies and how you do business. You are not saying the delay was a result of unforeseen circumstances. Your release is saying you have a process and you cannot make adjustments because that is the “DT” process of which prior vendors/suppliers have accommodated your “policy.” Why is that the problem of an American business owner? Fashion productions are high pressure, Kelly has a staff to pay, you are high risk because you don’t live or work in the USA (and it is her first time doing business with you, at least from the releases). It is crazy to think she would want to sue you in South Africa. That is extra cost for her on foreign soil. Why exactly, again, should she accommodate you? Did I miss something?
Further, you consciously entered into this agreement with her and there is no showing of bad faith on her end in fulfilling her terms of the bargain. So, why exactly again should she accommodate you? Vista, I really don’t care for that release because it made David look bad and his response to WWD was already sufficient and appropriate.
You are there to fix the situation and make things look better. Calling Kelly “controversial and impatient” is not only silly but redundant. David clearly had notice of that characteristic so why do business with someone you already know is “controversial” and “impatient?” Further, what America LOVES about Kelly is precisely because she is hard nosed, no nonsense and “controversial.” It is why she continues to be successful. So, telling us she is “controversial” does nothing for your client. You needed to address the delay (beyond some DT voluntary option not to cut a check out to your producer), why it happened and perhaps accommodations that Kelly, although not required, could have made for the interest of doing future business together, referral business you could have sent her way, or helping her expand her reach in South Africa.
Bottom line, if you will do business on foreign soil, be prepared to hold your own i.e. if you can’t stand the heat, get out of the kitchen. Also, the excuse about being from Africa and in New York trying to make it, is not only weird, but appears to perpetuate the very stereotype, distrust and cultural bias which I think is at play in how and why this deal fell through.
4. POSSIBLE LEGAL CLAIMS
I doubt this case will see the footsteps of a courthouse. Assuming it did, there could be a claim for Defamation, since Vista is claiming Kelly is engaged in a “smear campaign.” I don’t see any false or untrue statements (Defamation) being paraded anywhere. Perhaps, there are more facts that would support such a theory.
BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
Another claim could be that of a breach of the implied covenant of good faith and fair dealing. In every contract, there is an implied covenant of good faith and fair dealing. This means the parties implicitly agree that they will deal with each other fairly and honestly.
Arguably, Kelly pulling out when she did, the emails sent to third parties and press statements, can be aggregated and said to amount to a breach of that implicit covenant of good faith and fair dealing. We would need to know more about the surrounding circumstances of this case and negotiated terms, among others. The back and forth emails would probably be helpful too.
For the sake of brevity, I will stop here. Suffice it to say, lessons learned, especially for African designers looking to do business on the kind of scale David Tlale seeks to engage in the USA. When people start worrying if you can pay your bills, before you even make your debut on US soil in the fashion industry, it is never a good look.
(NOTE: Please chime in. What do you all believe was the appropriate way Kelly and David should have handled the situation?)
Ms. Uduak Oduok is the Founder and Editor-in-Chief of Ladybrille® Magazine. She is also an 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 (firstname.lastname@example.org) to share/pitch your Africa Fashion Law™ related stories with her. All other inquiries, please visit the www.ladybrillemag.com/contact for appropriate contact email.
DISCLAIMER: Nothing herein forms an attorney-client relationship. The legal commentary provided is for informational purposes only and is not meant nor should be construed to be legal advice.