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Social Media, Merch and Celebrities: Your Go-To Primer for Personality Rights - Fashionista

Social Media, Merch and Celebrities: Your Go-To Primer for Personality Rights

Who can legally use — and profit from — your image?
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Just a few ladies who know a thing or two about their image being valuable. Photos: Getty Images

Just a few ladies who know a thing or two about their image being valuable. Photos: Getty Images

Glamorous as their lives may be, being a celebrity does have some tough aspects: There's the lack of privacy, the constant attention and the fact that everyone wants to make money off of you. That means that your very image holds actual financial value. It's why brands are so happy to regram from a celebrity's Instagram account or to tweet out a paparazzi image of the hottest It Girl carrying their bag.

Of course, these days, those photo ops come pre-planned, whether through agreed-upon (and paid) social strategies or tipped-off paparazzi. But what's a famous person to do when that image is used in ways they don't approve of? As anyone with even a small internet presence knows, it's hard to control your content once its out there — and celebrities and models are learning that the hard way

It's an incredibly murky field of law, so we turned to Susan Scafidifounder of the Fashion Law Institute, to help us make sense of it all. And while many of these issues pertain to celebrities, there's some good advice for the rest of us in here too. 

All words, Susan Scafidi as told to Fashionista

What are image rights or life in publicity and personality rights, and how do they work?

There's a range of connected things that we're talking about. From the beginning, when we're talking about a person and their personality rights or rights of publicity, that includes their image but can also include things like their name or a portrait. It's a little broader than just images. Of course, in fashion, we see images used most of all, although you can see names as well. When you think about the recent controversy involving Kendall and Kylie Jenner with the t-shirts involving Tupac and Biggie and a few of others, it clearly involved those names and images, so we're dealing with a whole spectrum of personality rights or rights of publicity. 

Rights of publicity are, in a word, complicated. They go back to a combination of privacy rights, so essentially the right to be left alone, and more recently, property rights — more specifically, intellectual property rights — because names and images can be very valuable. You can exploit those things for economic value and economic gain.

Kendall and Kylie Jenner for Kendall + Kylie's vintage tee collection. Photo: Kendall + Kylie

Kendall and Kylie Jenner for Kendall + Kylie's vintage tee collection. Photo: Kendall + Kylie

How does one obtain these rights?

The most complicated thing of all about publicity or personality rights is that there is no federal law, and there is absolutely no international harmonization. It's not just country by country, but also state by state within the U.S.

One of the biggest details, for example, is what happens when you die? Some of the states that recognize right of publicity extend that right after you die. The number of years varies from places that have a very specific number of years — 70 in California, for example — to places like New York that do not extend the right of publicity after someone dies. 

There are other variations as well; in California, for example, it matters whether your rights to publicity were worth anything when you died, or because you died in some dramatic way. That's going to influence how long your estate gets to control them and collect royalties or use them in some commercially valuable way. 

It is, bottom line, very complicated.

Who gets to file for these rights?

Individuals' image rights, rights of publicity or rights of personality come with the person as a package. They are naturally yours as an individual while you are alive. That's pretty much universal. In fact, in New York, there is not only a cause of action for an individual whose image is used without authorization to sue, but it's also a criminal act to use someone's image without getting prior written consent.

How do these rights work alongside copyright laws?

If a photographer takes a picture of you, for example, then we might have an interesting situation. The photographer might own the copyright in the picture; if it's done in a commercial context where the photographer is the employee, the photographer's employer owns the right to the picture, but you as a person own the right to your image. This gets complicated in the fashion realm because we have to make sure that all the parties are on the same page.

When there's a fashion company that wants to use a model in an ad campaign, the fashion company is going to hire an ad agency, they're going to hire a photographer who will take the pictures. The photographer transfers the copyright back to the ad agency for use by the client, but there also needs to be a written release from the model, releasing her image rights for limited purposes. It is definitely something that has to be thought about in advance in these cases.

What happens in the case of paparazzi photos?

For paparazzi photos that show up in the tabloids or online, usually that's fine if the individual is in a public place. However, once a brand, without authorization, uses that image to sell products, suddenly that paparazzi image turns into an ad. Katherine Heigl is walking out of the drug store with a bag, and the paparazzo can shoot her, put her online, but once Duane Reade uses that in an advertising fashion on their social media feed, then it becomes a problem and they have potentially violated her publicity rights.

It's definitely okay to use an image in the news, probably okay to use it in editorial, but when you start to use it to sell things directly, then it's advertising. But as we well know, on social media, there's a tremendous amount of gray area between what's an ad and what is editorial or news reporting.

What happens when brands re-appropriate an image posted to social media to promote themselves?

We're dealing with a two-part question. One is the self: You took the picture, you have copyright of that picture, and unless you've waived your rights in some way — and that's where reading the fine print on Instagram or any other social media becomes important, although literally none of us have time to read all of that fine print, it would take lifetimes to do that — the fine print will determine whether or not you've waived copyright. More than likely, you have not waved it for use by a third party.

There's the copyright in the photo: Maybe it's you in the photo, maybe it's a friend in the photo, or maybe it's a celebrity you saw in the street in the photo. That person also has rights. That's where that becomes tricky. If they didn't give permission for the photo or permission for posting online, or permission for use in advertising, then we'd have a dispute.

Does altering the image in any way change how that works?

Yes and no. That changes some things. There is a movement in copyright law toward allowing transformative uses. We've gotten mixed results. There's an appropriation artist by the name of Richard Prince who is really pushing the boundaries of this and claiming that any transformative use means that the use of the underlying original images should not be subject to copyright. In fact, copyright law grants the owner of an image not only the right to reproduce it, but the right to produce "derivative" work.

Technically, under copyright law, what Kendall and Kylie did when they transformed those images was to create a "derivative" work. Now, if those were just old t-shirts that they printed over, there's no copyright issue, because they hadn't made copies of the original images on the t-shirts, they just used old t-shirts. But since what they did was take old images, add their own faces, and re-print the old images and their faces, that is technically a derivative work and technically a copyright violation. 

We are definitely at a point in history where there has been a series of challenges by artists to the idea of derivative work requiring licensing. The clearest answer at this point is there is copyright in derivative works. Even if you transform someone else's work, if it is still recognizably their work, you must pay them for it or come to some kind of agreement. 

How difficult is it to have your image removed from places like social media?

This, too, is complicated because it's an evolving area of law. If the image is somehow newsworthy and people are commenting on it, then the first amendment comes into play. We can't cut off the transmission of news. But the more time passes, the more likely it is to be a violation and the less likely it is to be real news. We're also starting to see a strong divergence between the west, where all of this is very unsettled, and Europe, which has stronger privacy protections. 

All of this, with regard to likeness rights, comes back to a right of privacy; in Europe, they have a much stronger commitment to individuals' privacy rights. The question of the right to be forgotten, the right to be able to erase your social media and to remove yourself from websites and that sort of thing has much stronger support in Europe. A year from now, next May, a new European privacy directive is going to take effect that is going to have a lot more protection for individuals in that regard.

We are going to see an evolution of the idea of being able to have a right to be forgotten, to get yourself off of social media or out of other kinds of inappropriate reports. Then the question becomes: What's news? What is necessary use in history and the telling of history? What is near exploitation and should be under the control of the individual? It's complicated for you and me; it's even more complicated for public figures. 

What recourse do people have who have their rights violated?

The procedure is going to absolutely vary state by state and situation by situation. The first thing to do, of course, is to ask whoever used your image without permission to take it down. Then, if they don't, the next steps are to start exploring where it was used, in what jurisdiction, what the rights in that jurisdiction provide to you as an individual, and then decide from there: Is it worth it to you to pursue legal action?

How can you safe-guard your image against being used inappropriately?

The first and best strategy is prevention. If you don't want your image to be appropriated, then don't put it online or don't put an unflattering image online anyway. Beyond that, it's possible to watermark images so they're more easily identifiable and you can be sure that the image being used is your image and not an image being taken by someone else. We see that happening in a lot of commercial contexts where images are watermarked and then only if a licensed payment is put in place are the images released without the watermark. Those are the kinds of technical measures that you can take. 

What are some good examples of how these rights work?

Topshop's shirt with Rihanna's image. Photo: Topshop

Topshop's shirt with Rihanna's image. Photo: Topshop

The case of Topshop and Rihanna is a perfect one. It was never clear whether Topshop purchased the rights or simply decided to use the image. My guess is they probably purchased the rights from a photographer or one of the stock photo companies that happened to have the image and forgot to ask Rihanna. It's absolutely a case where they may have cleared some of the image rights, namely the photographer's copyright, but forgot to clear the right of publicity with the celebrity on the t-shirt.

You can almost think of these rights and images as peeling back layers: You can peel back the photographer's copyright, then you peel back the layer of the client for whom the photographer took the picture, then you have to peel back the right of the individual in the picture. 

Kendall and Kylie and the Tupac and Biggie t-shirts are also perfect examples. In the case of Tupac and Biggie, you have this situation where you're dealing with a deceased celebrity and potentially their estates. If you want to use an image, you have the added complication of needing to ascertain whether or not the rights of the individual actually may have expired, even if the rights to the image itself — say the photographer's rights — have not.

The other thing to think about, which is why I think that Tupac and Biggie are a great example, is that there were charges of cultural appropriation as well because they were super-imposing Kendall and Kylie's images over the images of iconic black musicians. I think that that's another piece that is not involved in every circumstance, but is occasionally involved, which is why Biggie's mom actually took the offenders to task in that case and demanded an apology, as did many other fans and members of the community.

Weatherproof Garment Company put an image of President Obama in their jacket, a windbreaker jacket, on a billboard. The White House didn't bring a lawsuit, but they definitely expressed displeasure with the idea of the President being used in an ad in that way, even though he's a public figure and he actually did wear the jacket. It's those kinds of issues that become complicated.

Not all brand uses are necessarily advertising uses. Burberry ended up in a dispute with Humphrey Bogart's estate because of an online timeline that they did. Burberry put an image from the end of "Casablanca" of Bogart wearing a Burberry trench coat on a timeline and Humphrey Bogart's estate said, "Oh no, that's commercial use of Bogey's image without permission and you need to pay us for that or take it down." Burberry responded that it wasn't actually advertising because they weren't selling anything, you couldn't click through and buy this same style of trench coat, it was factual reporting about history and used in a film and so they should be able to do that.

Fortunately for the parties, but unfortunately for us, the case settled. We're not sure whether that would be a permitted use — nevermind figuring out all the questions about use of a still from a film that is potentially under copyright, probably under copyright still. It really does become a slippery slope.

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This interview has been edited and condensed for clarity.