iThe fashion industry is finally loosening its buttons—several decades and a few billion dollars in advertising later, retailers are moving away from using high-priced models and exotic locations to lure customers. Instead, many brands are promoting their designs by relying on every day images of existing customers wearing their products. Consumers- specifically, young women- are flaunting their personal style through social media platforms and retailers are embracing this outlet as a means of engaging customers. Recently, a Wall Street Journal article [1] highlighted this new phenomenon, explaining that retailers’ “embrace of real-people photos feeds the needs of young consumers for connection.” Candid street style is quickly becoming professionally-styled advertising’s more popular younger sister, and retailers are adjusting their business strategies to catch up with consumer behavior.
To do so, brands are capitalizing on social media features that allow users to self-categorize photos and posts. When a consumer takes a photo of herself wearing a brand-name item, she can use a hashtag to identify the retailer in the caption. The photo is subsequently added to an archive of others tagged under that category. The “hashtag” is a form of metadata tag that marks keywords or topics and helps users filter through the enormous volume of content that exists on social media sites. Retailers have started to encourage social media tagging by featuring these photos on their own websites and in advertisements. However, consumer-driven grassroots advertising raises privacy, publicity, and copyright concerns for retailers who fail to comply with relevant laws. Photographs are copyrightable, brand logos are trademarked, and individuals have enforceable privacy and publicity rights. A retailer looking to participate in social media tagging and advertising must tread through cyberspace carefully.
Twitter and Instagram are relatively safe from copyright infringement in the normal course of their businesses—each has a Terms of Use and Privacy Policy that grants the service a non-exclusive license to lawfully display user content. Retailers, however, must be cautious of how they use this content. A retailer who adopts a user photo for advertising purposes and profits from doing so may owe a portion of those profits to the copyright owner.
Retailers who choose to use Instagram or Twitter photos on their websites should also be vigilant that their content does not misappropriate consumers’ publicity rights. For example, Lululemon’s website features a page titled “The Sweat Life,” a carefully-selected compilation of flattering Twitter and Instagram photos that used hashtags to identify the brand. The brand’s website alerts users that tagging the brand is an automatic admission of consent to use those photos on their website. While consumers continue to own the photos that they share, their hashtags grant Lululemon a license to use the photographs however they choose. This catch-all provision may be insufficient—without discussing more specifically how the company intends to use a license, their use may extend beyond the legal confines of state publicity law.
Retailers may be surprised that consumer submissions are entitled to publicity rights- after all, users are voluntarily posting public photos of themselves on websites knowing that the photos may be used to advertise the brand. Furthermore, these individuals are usually not celebrities whose identities are protected from economic injury. However, social media in modern society is blurring the line between celebrity and consumer, and courts are quickly catching up. California courts in particular have established that non-celebrities can claim economic injury when their likeness is used among people who recognize their image, including friends and family.[2] The Court reiterated that "the statutory right of publicity exists for celebrity and non-celebrity plaintiffs alike.”[3] Under California common law, it is relatively easy to state a cause of action for misappropriation—a consumer merely needs to prove that his or her identity was unknowingly used in a commercial context that resulted in economic injury. A claim under statutory law requires additional proof that the defendant knowingly used the photo and that there was a direct connection between the use and the commercial purpose.[4]
To avoid misappropriation claims, retailers should avoid using consumer-generated photographs in print advertising campaigns that have the potential to generate significant economic profit. Unsuspecting Instagram or Twitter users are not guaranteed to have read or consented to a retailer’s website terms of use or privacy policy, let alone agreed to have their images used in multi-million dollar advertising campaigns. Courts are not likely to be sympathetic to companies that have unjustly enriched off of free consumer submissions, regardless of consumers’ willingness to do so. Furthermore, brands should be careful that the photos being uploaded only display the photographer—users could upload photos of friends, family, and strangers who have not consented to the use of their image. While a photographer may have knowingly licensed his or her copyright rights, the subject of the photograph is not guaranteed to have knowingly licensed his or her privacy and publicity rights.
Using tagged social media photographs is an effective means of promoting a brand and generating goodwill, but it is not risk-free. Just because an individual voluntarily uploads a photo of themselves on the internet does not signal that they have forfeited their rights to publicity. Retailers looking to take advantage of grassroots advertising campaigns should restrict the extent to which they use these photos commercially and for economic profit.
1] Christina Brinkley, More Brands Want You to Model Their Clothes, Wall St. J. (May 15, 2013)
[2] Fraley v. Facebook, 830 F. Supp. 2d 785 (N.D. Cal. App. 2011).
[3] See id. (citing KNB Enterprises, 78 Cal. App. 4th (2000)).
[4] Fraley, supra note 2.
