Companies
are Stealing Influencers Faces
Part I – Summary
of Issue
It is very typical for celebrities to be used in media, as influencers and in marketing. The issue today, however, can be found in whether their faces were used with permission, or not. This is an area of privacy tort law called appropriation, which is the use of a person’s name, picture, likeness, voice, or identity for commercial or trade purposes without permission. More specifically, we are looking at commercialization (the appropriation tort used to protect people who want privacy) and right of publicity (the appropriation tort protecting a celebrity’s right to have his or her name, picture, likeness, voice, and identity used for commercial or trade purposes only with permission).
It is very typical for celebrities to be used in media, as influencers and in marketing. The issue today, however, can be found in whether their faces were used with permission, or not. This is an area of privacy tort law called appropriation, which is the use of a person’s name, picture, likeness, voice, or identity for commercial or trade purposes without permission. More specifically, we are looking at commercialization (the appropriation tort used to protect people who want privacy) and right of publicity (the appropriation tort protecting a celebrity’s right to have his or her name, picture, likeness, voice, and identity used for commercial or trade purposes only with permission).
The specific story I am addressing involves Bernadette Banners, a YouTuber
famous for her historical sewing videos. She recently found out that a fast
fashion company was advertising one of her dresses, with her headless image,
for $40, which is not even half of the materials cost of her original dress. I
want to examine the plaintiff’s case for right of privacy and see if Bernadette
could have a strong enough case against the fast fashion company.
Part II –
RULE – Legal Questions Raised & Applicable Rule
There are a few questions that come to mind when I look at this case.
There are a few questions that come to mind when I look at this case.
1)
We need to determine what kind of appropriation
tort it is, commercialization or right of publicity. Therefore, we need to
determine whether Bernadette wants to remain private and unknown except to
family and friends, or if she wants to be known and to be a celebrity.
2)
We also need to determine if Bernadette’s name
or likeness was used
3)
We need to determine whether that name or
likeness was used for commercial purposes
4)
We need to examine if Bernadette ever gave
permission for her name or likeness to be used
5)
We need to determine whether the commercial use
was of and concerning her
6)
We need to determine if it was widely distributed
There are also a few defenses we may want
to look at to determine whether this case is strong enough to take to court.
1)
The first amendment may be a defense taken
against this case, therefore we would want to determine whether the fast
fashion company passes the artistic relevance test (whether the picture is
relevant to a disputed work’s artistic purpose), transformative use test
(whether the creator transformed the picture for artistic purposes), and
predominant use test (whether the defendant used the picture as protected
expression).
Part III –
APPLICATION – Applying the Relevant Doctrine / Precedent
To answer our first question, this is a right of publicity tort case. Bernadette is a famous Youtuber and celebrity of sorts. In order to win a right of publicity case, our plaintiff must prove whether her likeness was used for advertising or other commercial purposes without permission, whether the commercial use was of and concerning her, and whether it was widely distributed. Bernadette’s likeness was certainly used, since the fast fashion company used a picture of her in the dress in their advertisements. Although it was a headless picture, because the market is so niche in historical sewing pieces, it is clear that this was Bernadette’s photo. Additionally, the photo was used for commercial purposes- the fast fashion company used the photo as an advertisement to sell their own knock off versions of Bernadette’s dress. Additionally, based on the article I read, Bernadette did not give the fast fashion company any permission or consent to use her photo. The commercial use of the headless photo was of and concerning Bernadette, as she spent a lot of time, money, and effort on her pieces and the fast fashion company was trying to display their cheap versions as if they were hers. Finally, it can be assumed that since this is a popular fast fashion company (unnamed in the article), the photo was widely distributed enough.
To answer our first question, this is a right of publicity tort case. Bernadette is a famous Youtuber and celebrity of sorts. In order to win a right of publicity case, our plaintiff must prove whether her likeness was used for advertising or other commercial purposes without permission, whether the commercial use was of and concerning her, and whether it was widely distributed. Bernadette’s likeness was certainly used, since the fast fashion company used a picture of her in the dress in their advertisements. Although it was a headless picture, because the market is so niche in historical sewing pieces, it is clear that this was Bernadette’s photo. Additionally, the photo was used for commercial purposes- the fast fashion company used the photo as an advertisement to sell their own knock off versions of Bernadette’s dress. Additionally, based on the article I read, Bernadette did not give the fast fashion company any permission or consent to use her photo. The commercial use of the headless photo was of and concerning Bernadette, as she spent a lot of time, money, and effort on her pieces and the fast fashion company was trying to display their cheap versions as if they were hers. Finally, it can be assumed that since this is a popular fast fashion company (unnamed in the article), the photo was widely distributed enough.
When looking at a First Amendment defense against the plaintiff’s
case, the fast fashion company does not pass any of the tests discussed above
in the prior section.
Part IV –
CONCLUSION
Through this analysis, I have determined that Bernadette would have a strong plaintiff’s case against the fast fashion company, and that they would not have a strong enough defense against her. Learning about protecting privacy has been interesting, as a lot of cases are far more subjective than other areas of media law. Additionally, the defendant has several opportunities to bring appropriate defenses that could take down a plaintiff’s case. Overall, the most valuable takeaway from examining this case for me was to really pay attentive care in getting permission/consent if I ever must use someone’s photo in any advertising or commercial purposes. As a marketing major, I believe this will be very applicable to me in any future media job I may have.
Through this analysis, I have determined that Bernadette would have a strong plaintiff’s case against the fast fashion company, and that they would not have a strong enough defense against her. Learning about protecting privacy has been interesting, as a lot of cases are far more subjective than other areas of media law. Additionally, the defendant has several opportunities to bring appropriate defenses that could take down a plaintiff’s case. Overall, the most valuable takeaway from examining this case for me was to really pay attentive care in getting permission/consent if I ever must use someone’s photo in any advertising or commercial purposes. As a marketing major, I believe this will be very applicable to me in any future media job I may have.
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