Claims of commercial appropriation of a person’s identity — “the right of publicity” — require drawing a line between editorial and advertising. The need to monetize content leads to affiliate marketing of products. Online marketing of products leads to creating related content. We all want to know what Kim Kardashian thinks about all of this. Her new lawsuit against online marketer, Missguided USA, filed in federal court in California on February 20, gives us some idea.
Her complaint alleges that Missguided has crossed the line between covering celebrity fashion (and offering knock offs of the designs worn by celebrities) and using celebrities as advertising for the fashions that it sells. She asserts that Missguided's “website pages do not merely report on Kardashian’s style or fashions.” She said that the websites contain “entire pages that are devoted solely to the sale of clothing inspired by Kardashian.” The websites “contain direct links to pages on the site where clothing can be purchased” and prompts users to “click a 'Shop Kim K' link, where they can buy clothing copied from Kardashian’s prior looks.”
She also complains that even Instagram posts “that do not specifically solicit sales of a particular item of clothing function nevertheless to advertise Missguided’s brand and website." She objects to Missguided responding to her own Instagram post addressed to "fashion brands “ ("please wait until I wear this in real life before you knock it off”). Missguided responded: “@kimkardashian you’ve only got a few days before this drops online.” She especially objects to the use of her username: “Missguided purposefully inserted Kardashian’s Instagram username (@kimkardashian) into its post to capitalize on her celebrity status and social media following in promoting the sale of its upcoming product.” Most significantly, she asserts that Instagram posts that contain direct links to pages on the website where clothing can be purchased are advertisements, and the “entirety of the Instagram page, therefore, is an advertisement.”
The distinction between editorial content and advertising has its roots in the right of publicity. Long before the wall between editorial and advertising came down at the end of 2014, content creators and distributors confronted the need to distinguish their editorial content from commercial content due to possible claims by anyone in the content, if it was deemed to be advertising. Today "native advertising" and custom content created by media raise these issues in the context of editorial integrity and the need to disclose any influence by advertisers. But the precedents can be found in right of publicity cases. For example, New York magazine’s “Best Bets” column was declared by New York courts to be protected against right of publicity claims as long as the decision to feature a product was made without any consideration from anyone connected to the featured product; and a California federal court found that Abercrombie & Fitch stepped over the line when its “magalog” allowed content in its articles to be featured in the products offered in the catalog. The Missguided case may shed some light on the application of these precedents to today’s marketing and brand building, and that would spill over into the discussion of “native advertising."