Right of Publicity: an introduction with negotiation terms for models and fashion influencers

 
Image: Carmen Caserta, NYFW FW19

Image: Carmen Caserta, NYFW FW19

 
 

I was sitting on a bench in front of a coffee shop on the Upper West Side chatting with a local music producer about possibly working together on my upcoming studio recording project (#shamelessplug). We were visibly engrossed in our conversation and cappuccini when a zealous woman approached and began complimenting my tattoos. (The event was really more like an accosting; she aggressively inserted herself into our music meeting bubble and commenced a rapid-fire way-too-long-way-too-self-congratulatory pitch about a series of books she’s publishing on tattoos and people’s motivations for getting them and how everyone loves what she’s doing and oh boy she’s been invited to lecture at a fancy university and she’s even been showcased on TV and interviewed by publications and news media and wow she’s been talking for like five whole minutes already.)

She wanted to know if I’d agree to let her take photos of me to include in the next installment of her book series. She’d already whipped out her iPhone and started directing me to “just sit naturally” before I’d even had a moment to adjust to the sudden addition of another human being into my present moment let alone consider her ask, flattering as it may have been. She told me she’d email me a release form.

The little girl in me who might once have daydreamed about being a supermodel someday, (I’d be one of the shorter, curvier models, you know, representing “body diversity”), was admittedly giddy at the idea of having pretty pictures of me featured in a pretty printed book about people’s pretty tattoos. The present-day lawyer in me thought, you friggin’ better send me a release, and be prepared for me to basically rewrite the whole thing.

I’m not a famous runway model, but I still have the right to control the use of my name and identity in commerce. It’s a thing; it’s called the right of publicity, and all people inherently possess this right.

Right of publicity in New York

Rights of publicity vary from state to state, so please check your state’s governing law. This article discusses New York State law only.

Generally, the right of publicity serves to (1) preserve the commercial value of a person’s identity; (2) prevent improper profiting from unauthorized use of a person’s identity; and (3) protect people from unwanted dissemination and exploitation of their identity.

New York Civil Rights Law (CVR), Article 5 covers the Right of Privacy, an umbrella of laws under which the right of publicity falls. Sections 50 and 51 detail the right of publicity and consequences for violation of the law.

Under CVR §50, the unauthorized commercial use of any living person’s name, portrait or picture is a misdemeanor and can carry criminal penalties including jail time and fines.

CVR §51 establishes a civil cause of action for the violation of a person’s right of publicity and states in relevant part:

Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without...written consent...may maintain an...action in the supreme court of this state against the person, firm or corporation...using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use...

This language means any person - not just famous supermodels - may bring a lawsuit against a violating party and seek both a court order to force the violating party to stop using the person’s name, portrait, picture or voice; and money damages. The plaintiff must prove three elements: (1) the defendant used plaintiff’s name, portrait, picture or voice; (2) for the purpose of advertising or trade; and (3) without the plaintiff’s written consent.

There are important exceptions to the rule. These exceptions will be discussed in forthcoming comments.

Model release forms and the right of publicity for models and fashion influencers

Fashion industry professionals such as runway models and fashion influencers have a special interest in protecting and controlling the exploitation of their identities. When identity is a person’s primary commodity, it becomes critical to control the manner in which the identity is being used and the money being generated from that use.

At the beginning of this article, I mentioned something called a “release form.” This is a legally-binding contract wherein a person gives permission to another party for that party to use the person’s name, portrait, picture or voice in advertising or trade for the benefit of the other party, typically referred to as a “model release,” or simply, “release.” The model release is the mechanism wherein models and fashion influencers can negotiate those pesky manner and money issues.

There are several terms to negotiate in a release. It is always preferable to have an attorney look over a release before signing. Better still is to hire an attorney practicing within the fashion industry.

Terms and conditions to negotiate include but are not limited to:

  • Specific photographs - What exact photos are being used?

  • Compensation - Is the model/influencer being paid for the rights to use her identity? If so, how much? When is payment due? What is the method of payment?

  • Royalties - Is the model/influencer entitled to royalties from profits generated by the use of her identity?

  • Time duration - What is the amount of time for which the permission lasts? One month? One year? Until the end of time?

  • Geographic territory - In what cities, states, and/or countries may the photos may be used?

  • Types of media - May the photos be used in print media? Online media? Social media? Which platforms are okay? Does the model want to exclude certain channels?

  • Purposes of use - What are the acceptable purposes of use? Marketing and advertising? Political campaigns?

  • Brands and companies - What brands and companies may use the photographs? Does the release extend to brands that are not a party to the contract (third-party brands)? Does the model/influencer want to preclude any specific brands from using her identity?

  • Editing and graphic manipulations - May the photos be retouched or edited in any way? What level of graphic manipulation is okay?

  • Approval rights - Does the model/influencer have the right to approve the photos before they’re used?

Beware of red-flag language in a model release

Be especially wary of releases that use broad, boilerplate language and impose little to no restrictions on the above bulleted issues. It’s rarely favorable to a model or fashion influencer to give permission for something like:

“...the use of any and all photographs taken of her, and any reproduction of them in any form in any media whatsoever and in any derivative work throughout the world in perpetuity (for all of time and eternity)...”

Nor is it advisable to consent to:

“...the use of any fictitious name which may be chosen in connection with the photographs…”

Nor to:

“...waive any right she may have to inspect and/or approve the photographs or the advertising copy that may be used in connection therewith or the use to which it may be applied…”

Yikes!

(This article is not meant as legal advice and is written for educational purposes only. If you need legal services, please contact an attorney.)