This is the first part of a two-part series about marketing and online platforms
After great marketing efforts, Hollywood is finally noticing your designs: an A-list actress has recently been seen wearing your latest creation! The obvious way to celebrate would be to share the picture on your brand’s social media accounts to show the world that even celebrities appreciate your work. However, doing so does involve legal implications that go beyond the simple act of clicking a button. When sharing a picture on social media, two elements need to be taken in consideration: the existing copyright on the image and the person in the picture’s rights of publicity.
How is copyright involved?
When an individual (a photographer or a publication, for instance) holds the rights to an image, he or she has the exclusive right to reproduce it. Reproduction includes, amongst other acts, using a picture for a social media post. Contrary to popular belief, grabbing a picture from Google images or any other source and posting it online is considered an infringement on the copyright holder’s rights, regardless of whether or not you are giving the person the deserved credits. Of course, the chances of them taking action and taking you to court is debatable and greatly depends on circumstances, but do not ignore that fact simply because using pictures you do not own is a common offense on the web. The copyright holder may take you to court and ask for monetary damages as well as an injunction (a court order preventing you from using their work).
What are publicity rights and why do they matter?
While copyright issues tend to be quite straightforward, the opposite can be said for publicity rights. Individuals, whether they are famous or not, have the right to protect their image from unauthorized commercial exploitation. Federal law might not protect rights of publicity, but about 50% of U.S. states, including California and New York, do have some sort of right of publicity statute. Companies must therefore be very wary of the messages conveyed when someone’s image is involved. For instance, in 2014, Duane Reade shared on Twitter a paparazzi shot of Katherine Heigl stepping out of one of their locations. The image was accompanied by the caption “Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.” The actress sued the company, demanding $6 million in damages, because she considered that Duane Reade’s actions were an unauthorized use of her image for promotional purposes. For that very reason, the way you use the picture, once you’ve obtained the permission to use it, is crucial because it is what will determine whether or not your use will be seen as commercial.
Are there any exceptions?
The 1st Amendment’s right to free speech does permit the use of an individual’s image without permission. However, this right does not apply when financial gain and commercial purposes are involved. Unless there is absolutely no link between your use of the picture and your company, contacting an attorney is recommended.
If you are still thinking about sharing someone’s image on social media, here are some guidelines to keep in mind:
Do not use pictures you do not own The easiest way to avoid copyright issues is to refrain from using any pictures that are not in the public domain or that you have not taken yourself. A simple tweet mentioning the fact that a celebrity has worn one of your designs recently and that you were very flattered and happy about it might save you from the consequences of using an image that is not yours.
Ask for permission If you would still like to use a picture, asking the image’s copyright holder as well as the celebrity’s written permission is your safest option. Keep in mind that the person you got the picture from might not be the initial copyright holder. You can do a reverse Google images search to help you find who took the picture and who owns the rights on it (they might not be the same person). Remember that linking to the original source or giving credits to the rights holder is not enough to absolve you from copyright infringement. To reach the celebrity, a quick tweet or private message on their social media accounts is probably the easiest way to go about getting a release.
Do not post the picture yourself Rather than creating a brand new post incorporating an image of the celebrity wearing one your designs, opt for sharing an already existing post either from the celebrity’s account or the copyright holder’s account.
Try not to include a comment or caption with the image The message attached to the picture you are sharing is a crucial part of your post. In past cases, the main issue with some brands’ use of social media has been that the speech accompanying the image was absolutely indistinguishable from what it would have been had the celebrity had an endorsement agreement with the company. The safest route would be not to add any caption or comment.
If you must add a caption, keep it conservative Think carefully about your message. The goal here is to stay away from a promotional tone and to distance yourself from any implied relationship between you and the individual. One option might be to be humble about it and craft a caption showing how delightfully surprised you are to see that a certain celebrity is wearing one of your garments.
As with all Law on the Runway posts, please use this as general information, not as legal advice. Make sure to contact an attorney. If you have any questions, please email firstname.lastname@example.org.