Page 9 - Fashion Law

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Fashion Law | MONDAY, SEPTEMBER 12, 2016 | S9
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surrounding the FTC enforcement action, the retailer agreed to an injunction prohibiting it from misrepresenting that such posts are from an independent source, and is required to ensure that its influencers clearly dis- close when they have been compensated in exchange for their endorsements.
Similarly, Warner Brothers settled FTC charges that it deceived consumers by failing to disclose that it paid social media in uenc- ers to post positive reviews and gameplay videos as part of a video game marketing campaign. Warner Brothers agreed to a broad injunction regarding its social media in u- encer marketing practices and an af rmative obligation to educate and monitor in uencers regarding sponsorship disclosures.
The lessons from these settlements are clear: Brands must take af rmative steps to ensure that when the author of the content is paid in some manner for the content, there is appropriate disclosure. This starts with train- ing in uencers on the disclosure obligations, and continues with monitoring their social media activity.
Can Brands Use Celebrity Photos in Social Media?
Brands can be held liable for the unauthor- ized use of someone’s image in connection with the brand’s social media page. This is an important consideration as celebrity photos are often used in connection with brands’ social media. While many brands show photos of celebrities using their products in everyday life, celebrities earn substantial sums of money licensing the rights to use their name and likeness; thus it is important to ensure that these rights are not violated when promoting, marketing and advertising products. Even using a famous person’s name without their image can be problematic.
For example, an unauthorized photo was taken of Katherine Heigl leaving Duane Reade,
and the company posted the photo on Face- book and Twitter, tweeting, “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.” Heigl sued Duane Reade for $6 million dol- lars. While the lawsuit settled, this illustrates how far celebrities will go to control the use of their images.
Lawsuit or not, brands can receive press backlash if a photo is used on social media without authorization. Valentino received a lot of negative press when it issued a press release boasting that actress Amy Adams was carrying a purse from the brand’s col- lection, failing to mention that she was car- rying it at Philip Seymour Hoffman’s wake. While Adams never led a lawsuit, Valentino received enormous criticism for its tasteless promotion and had to issue an apology. Since it is so easy to repost photos on social media, companies do it quickly without clearing the photo, or in this case determining a photo’s origins. To avoid such scenarios, companies need a formal social media policy to which all employees strictly adhere, as often several people in a company have the ability to post.
As a best practice, whenever a brand wishes to use a celebrity’s name or likeness in any way, it should be cleared with the celebrity or a deceased celebrity’s estate. Even if the name or likeness is not used in traditional advertising, as with social media, and the brand makes no express statements to indicate endorsement or sponsorship, the subject could still take issue with the unau- thorized use.
Social media is an essential tool in brand promotion. However, it is important to remem- ber that traditional intellectual property and right of publicity/privacy laws that typical- ly apply to advertisements apply equally to social media. Ascertaining whether the appropriate rights have been secured need to be carefully considered, even if the brand is seeking to act in real time.
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