This year’s Fashion Week was quickly taken by the #NoFreePhotos storm. You might have seen the hashtag going around on Instagram as well as a few articles touching upon the subject. Now that Fashion Week is over and that the dust has settled, let’s decorticate what happened and the legal aspects of the #NoFreePhotos movement.
This post is meant to be taken as general information, not legal advice. If you need assistance regarding influencer marketing, rights of publicity or copyright, please consult an attorney.
How did #NoFreePhotos start and what is it about?
A number of street style photographers decided to start using the #NoFreePhotos hashtag on their Instagram publications to protest the use of their work by influencers who fulfill their obligations to fashion brands by distributing those streetstyle shots online. Often times, brands pay influencers to wear certain garments or accessories in public and posting a street style photo on their social media profiles is an excellent way to get additional product exposure. In this situation, photographers were claiming that their copyrighted work was used not only without their permission, but also without any compensation, explaining the appearance of “License My Work” links in many photographers’ bios.
Are the photographers right? Can the influencers use their pictures without their permission/compensation?
In order to answer this question, we have to discuss the concept of copyright. Copyright gives creators the exclusive right to use and reproduce, amongst other things, the work they create. Copyrighted-protected work cannot be used without the permission of the copyright holder or a license from said owner. When only considering the copyright side of the situation, influencers should not use streetstyle shots without asking for permission or obtaining a license from the photographers.
What do influencers have to say about the issue?
While photographers say influencers cannot use their photos without permission, some influencers such as Bryan Boy have stepped forward to talk about the absence of model release forms when streetstyle photographers take their pictures. Brian Boy has claimed: “Imagine if every influencer or editor or fashion person started complaining that their images are being taken AND sold without authorization? Class action lawsuit much?”
Rights of publicity, which is different in every state, allow individuals to control their image and protect it against unauthorized commercial exploitation (you can read our blog post about it here). This means using someone’s image for commercial purposes without their permission is illegal. Influencers claim they make very little money, the clothing they wear usually being borrowed, while photographers make money off selling their photos to various publications and online retailers. However, taking pictures of influencers, especially in the context of Fashion Week, might be covered by the First Amendment exception of “newsworthiness,” as Fashion Week, and therefore the influencers who were present, could be considered a matter of public interest.
The #NoFreePhotos movement is interesting as it pushes us to think about our legal priorities. Do we think copyright law is more important than rights of publicity? Or, as Bryan Boy says, is this a symbiotic ecosystem with no disconnect that works well the way it is?
As with all Law On The Runway posts, this is just general information, not legal advice. If you have any questions, please send us an email at firstname.lastname@example.org