Although street style photos continue to rise in popularity (particularly around major cultural events or movements), when a celebrity is pictured in the media wearing a certain brand (or, even better, posts to their own social media account a photo showing a particular brand's product), it can be difficult to dissuade in-house marketing teams from rushing to capitalize on this brand exposure.
The potential upside is clear. When Taylor Swift attended a Kansas City Chiefs football game against the New York Jets wearing a pair of Area bejeweled denim shorts, news sources reported that sales for the brand increased by 400% and were sold out from multiple retail locations in approximately 24 hours. Swift's appearance reportedly had a similar impact on sales of Travis Kelce's jersey as well as boosting his number of social media followers exponentially (Taylor Swift's star power sends Travis Kelce's jersey sales soaring: NPR).
The risk to the celebrity or influencer of posting such photos absent authorization has been headline news for several years (witness the lineup of photographer-filed cases against Gigi and Bella Hadid, Blake Lively, Paris Hilton, Emily Ratajkowski and others). However, brands posting, reposting or sharing a “street style” candid photograph of an individual wearing the brand’s merchandise - or using the individual's name in connection with any advertising material absent consent - risk a right of publicity claim from the individual as well as a copyright infringement claim from the photographer.
Over half the states in the U.S. protect an individual's right of publicity by statute or at common law. Currently, there is no national right of publicity law in the U.S., although several interest groups (including the International Trademark Association) have lobbied for years for adoption of such a law. Although often litigated in the context of celebrity paparazzi photos, many states extend protection to all individuals, not only famous persons.
To manage this risk:
- Brands should review and update their advertising and social media guidelines to contextualize the legal risk for internal social media and marketing teams as well as agency partners and establish guardrails to mitigate potential claims and litigation;
- Talent should confirm that photos (even of themselves) are cleared prior to posting or distributing to brand partners or the media and monitor the use of their name and likeness on social media as well as other forms of advertising and media.
However, the strategy of using Swift as the unwitting face of a brand is not without potentially significant consequences – both from a copyright infringement perspective and a right of publicity one.