Right of Publicity: advertisement vs. editorial use in the fashion industry

 
Collage: Carmen Caserta

Collage: Carmen Caserta

 
 

It took more than two years and half a dozen hairstylists in the Bay Area to find my perfect match. It became official when she gave me the cutest-ever French bob with baby bangs, a cut I thought only those cool girls in Pinterest pictures could have. So, when I relocated to New York City, you can imagine my distress over having to look for a new stylist. How many ridiculous cuts would I endure on my search? I was elated when my Bay Area gal planned a working trip to cut hair at a salon in Manhattan!

While my stylist was strategically razoring into my curls, I noticed her assistant taking photos and filming me on her phone. It was jarring to realize I was being photographed and filmed without my knowledge let alone my consent. Like, hello, please ask first. I said I’d like to approve any images before they are shared on social media, and pics of my left-side profile only, please. (It’s my best side.)

This experience sparked a legal contemplation: Could hairstylists’ Instagram accounts be considered advertisements and therefore be subject to the right of publicity? It’s not so far-fetched! Read on!

What is the right of publicity?

Very briefly stated, the right of publicity is people’s right to control the commercial use of their identities. The right of publicity applies only to the use of another person’s identity for the purpose of advertising or trade. Advertising is the solicitation of customers or clients. Trade is the buying and selling of goods and/or services. A quick test is to ask, “Is this person’s identity being used to advertise something?” Or, “Is this person’s identity being sold in some way?” If the answer is yes, you’re likely in advertising and/or trade territory.

(For a more detailed overview of New York’s right of publicity laws, please refer to my previous post.)

Right of publicity and the use of identity in the fashion industry

The fashion industry is propelled by the use of influential identities in media. Fashion models make a living with their identities; fashion houses compensate models to pose in fashion editorials and promote designer collections in print and online media. Fashion brands also tap social media influencers, celebrity athletes, and entertainment stars for brand endorsements and other promotional purposes. These are examples of “advertising” and “trade” because the primary purpose is to advertise fashion collections and ultimately sell clothes.

So, for example, if Gucci were to post on its Instagram profile a photo of Gigi Hadid for the purpose of advertising a product from a Gucci collection without Gigi’s consent, Gucci could be in hot water with regard to Gigi’s right of publicity. Same goes if Gucci did the same with a photo of you! Emerging brands might be wise to use caution when posting photos of style influencers (and regular people alike) wearing pieces from the brand’s collection without prior consent.

Violation of the right of publicity can also occur if a fashion photographer or street style photographer publishes images of his/her subjects on the photographer’s website for the primary purpose of advertising the photographer’s services. Even if an individual’s picture is not generating profits in and of itself, the picture is being used as advertisement, i.e., as a means to solicit business, so the photographer could be on shaky ground. (Harken back to my contemplation of hairstylists’ Instagram accounts.) That said, photographers do enjoy a good amount of leeway under some of the exceptions to the right of publicity. (Foreshadowing of forthcoming fashion law blog posts!)

Editorial use exception to the right of publicity

The right of publicity is not absolute. In order to preserve First Amendment liberties and protect the public’s right of access to information, courts have imposed exceptions to the rule. This article discusses only the editorial use exception.

Examples of editorial use of identity in the fashion industry include educational use and fashion criticism.

  • Educational use

This article is educational; its purpose is to educate readers about the right of publicity. I am not publishing this article for the primary purpose of soliciting business; therefore, my use of those pretty girls’ pictures in the collage I made and posted at the top of this article does not run afoul to the right of publicity. Fashion design schools present classroom materials using people’s identities everyday, often prominent people whose identities hold high commercial value. This is fair use because of its educational purpose.

A street style photographer might post his/her fashion week images in a blog series teaching techniques on how to take great street style photos. The blog series would likely be considered educational; thus, use of the subjects’ identities would not offend the right of publicity.

If your hairstylist films your haircut, and then posts the video on her “hairstyling tips and tricks” YouTube channel, (and she’s not superimposing a big, flashy, hot pink banner reading, “Book an appointment with me at the link below,” across every video), you might end up wishing you’d spoken up when she started filming you wearing that not-so-stylish salon cape with stringy wet hair in your face because, yeah, probably safe zone educational use. Or maybe you’re fine with it; you do you!

  • Fashion criticism

Do you ever take reprieve in a frothy cappuccino and a thought-provoking op-ed article by Vanessa Friedman commenting on cultural occurrences in the fashion industry? Or maybe you’re an avid reader of Robin Givhan’s expository perspectives on designer collections presented at fashion week. These are examples of fashion criticism. These articles are typically published with pertinent photographs of people in the fashion industry from models, influencers, and designers, to creative directors, celebrities, and CEOs. Use of people’s identities in conjunction with fashion criticism does not violate the right of publicity because the articles are written as opinion and commentary - not for the purpose of advertisement or trade.

Are hairstylists’ Instagram accounts advertisements for purposes of the right of publicity?

I found my hairstylist on Instagram. I saw her client photos; loved the fresh, fabulous, French-inspired cuts; and booked an appointment online (and then another and another and so on…). And isn’t this series of events precisely the point? If posting photos of client haircuts on Instagram is not for the purpose of advertising to solicit new clients, well then I’m not sure what is! I have often signed release forms for tattoo artists giving them permission to post pictures of the work they do on me. This practice would be simple enough for salons and hairstylists to implement. Asking for a release gives clients a voice and a choice, and it might even be required by law.

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