Social media sites offer fashion companies a new avenue to connect with consumers and cultivate loyalty and brand identity. But while creating an account and posting content is a simple matter of a few clicks, participating in social media sites poses a host of complex intellectual property issues. For example, imagine that Jane owns a high-end clothing shop called Boutique. Jane has just received a shipment of new paisley print blouses from the up-and-coming designer Blasée. Jane asks her friend Jim to find a stylish young woman on the street wearing the Blasée blouse and take her picture. Jim spots Sally crossing the street wearing the Blasée blouse paired with skinny jeans, and snaps a photograph. Jane posts Jim’s photo to Pinterest with the caption “You, too, can have stylish street style: Blasée blouses available at Boutique.” Whether Jane knows it, her Pinterest post has implicated a host of intellectual property rights:
Copyright: As the photographer, Jim presumably owns the copyright in his photograph. The designer, Blasée, may own a copyright in the distinct paisley fabric print of its blouse (though under current law Blasée would not have a copyright in the blouse’s design). By posting the photograph to Pinterest, Jane reproduces both the photograph and the fabric print, and thus implicates both Jim and Blasée’s exclusive rights.
Trademark: Regardless of whether Blasée has a registered trademark, it likely has common law trademark rights in its brand name. By using Blasée’s name in the Pinterest caption, Jane touches upon its trademark rights. However, under the doctrine of “nominative fair use,” Jane is permitted to use Blasée’s trademark to truthfully describe the fact she is selling its blouses at Boutique. Nominative fair use derives from free speech principles, and from the logic that it is often difficult to describe brand-name goods without referring to the brand itself.
Right of Publicity: Even though Sally is not famous, she still has a right of publicity, i.e. she controls the right to exploit her name and likeness for commercial purposes. By posting the photograph of Sally on Pinterest, without her permission, to promote the Blasée blouse, Jane has implicated Sally’s right of publicity.
Additionally, Jane’s Pinterest post must also must be viewed in light of Pinterest’s Business Terms of Service. By signing these Terms, Jane:
- represented that her post “will not violate any law or infringe the rights of any third party[,]” but, in the case of the photograph, Jane did not secure permission from Jim, Blasée, or Sally to use their intellectual property as summarized above;
- “grant[ed] Pinterest and its users a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, re-pin, modify, create derivative works, perform, and distribute” the content she posts, which means that when Jane pinned the photograph to Pinterest, she gave others the right to re-pin it, and she effectively lost control over it because she cannot remove others’ re-pins; and
- agreed that she was “solely responsible for, the User Content [she] posts to Pinterest[,]” and thus any liability resulting from Jane’s original post or others’ re-pins could flow back to Jane.
The potential intellectual property risks from posting on Pinterest are evident from this example, but the reality is more complicated: Although Jim owns the copyright in the photograph, if he is Jane’s close friend, what is the likelihood he will sue her? Will Blasée sue Jane for reproducing its fabric design, when Jane is doing so to promote sales of Blasée’s blouse? How likely is it that Sally will sue for violation of her right of publicity, when she has been photographed in a flattering light, and held up as an example of stylish street style? And in addition to these practical considerations, Jane may have legal affirmative defenses such as fair use.
Perhaps the best advice for those who use social media in the fashion industry (as well as other walks of life), is (1) be aware of who owns the intellectual property rights in the content you are considering posting, and (2) remember that certain content, such as a photograph, can implicate multiple rights belonging to multiple owners. With this knowledge, social media users can decide what to post (or not to post) in light of their own risk tolerance.