Beauty and the Brand: Drafting contracts for the commercial use of someone's likeness
by Kelsey Farish
Brands constantly seek to secure and promote their goodwill and reputation in the hearts and minds of the public. The use of individuals – either as models, spokespeople or other brand ambassadors – is often a key part of that process. But what control does the individual model (professional or otherwise) have over a photograph that depicts them? From a copyright perspective, unless the image is a selfie, the answer is usually, “not very much control at all”.
At law, a photograph’s subject is typically not entitled to exploit the image in question without permission from the relevant copyright owner or its licensees. Even in jurisdictions with strong image (personality) rights regimes, the issue of controlling an image by virtue of being depicted in it is rarely straightforward. Such matters often turn on privacy, commercial context, and the unique circumstances of the person’s public profile.
In addition to the legal complexity, the expectations and practical concerns surrounding control over one’s own likeness seem to be shifting. This is due in part to a growing movement amongst content creators, influencers, and other public personas seeking fair recognition and remuneration over how their likeness is exploited. Furthermore, accusations of cultural appropriation and unfair exploitation of models, as well as airbrushing and manipulation more generally, remain hot-button issues in the world of media and advertising.
Thankfully, freedom of contract provides ample opportunity for a photograph’s subject to exert at least some control over how their image is used. That said, it can be difficult to know where to start when seeking to protect the interests of both the individual and the brand.
The author of the forthcoming Practice Point, entitled 'Beauty and the Brand: Drafting contracts for the commercial use of someone's likeness', hopes that this guidance will be useful for those drafting contracts marketing campaigns and influencer agreements, as well as high-profile celebrity endorsements.
[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]
