The Authors' Take - Beauty and the Brand: Drafting contracts for the commercial use of someone's likeness

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]

The Authors' Take - To be or not to be … photoshopped

To be or not to be … photoshopped

by Yann Basire and Caroline Le Goffic

Photoshopping has become commonplace in fashion advertising. In most cases, models’ bodies are slimmed by using image-editing software. Such practices promoting unrealistic representations of women’s bodies are known to play a role in the development of eating disorders.

In the Law 2016-41 on the modernization of the French health system of 26 January 2016, the French legislator tackled this public health issue by including a provision (codified as Article L. 2133-2 of the Public Health Code) whereby fashion photos must bear a notification if they have been digitally altered to make a model's silhouette "narrower or wider”. The goal is to raise consumers’ awareness about the dangers of extreme thinness.

This provision was subject to its implementation by a Government decree, which came on 4 May 2017. Decree 2017-738 of 4 May 2017 pertaining to photographs used for commercial purposes of models whose physical appearance has been modified (codified in articles R. 2133-4, -5 and -6 of the Public Health Code) specifies in fact the scope of the rule.

The system came into force on 1 October 2017.

Pursuant to Article L. 2133-2 of the Public Health Code, “photographs used for commercial purposes of models, as defined by Article L. 7123-2 of the Employment Law Code, whose physical appearance has been modified through the use of image processing software to slim down or flesh out the model's silhouette must bear the notice: 'Retouched Photograph.'" The Employment Law Code defines models broadly as all persons who, even occasionally, either present a product or a service to the public while reproducing their image on any visual or audiovisual support, or pose as a model, whether or not their image is later used.

The Decree specifies when photographs of models may be deemed to be used “for commercial purposes”. Article R.  2133-4 of the Public Health Code provides that the rule applies to “photographs used in advertising messages”, which means that photographs used in articles are excluded from the scope of the obligation. Thus, only photographs used following the purchase of advertising space are concerned.

Article R.  2133-4 of the Public Health Code further specifies that the obligation applies no matter what medium the photograph used for commercial purposes is affixed on: billboards, press publications or online publications.

Regarding the content of the notice itself, Article R. 2133-5 sets out that “the notice must be affixed in a manner that is accessible, easily readable and clearly distinct from the advertising or promotional message. The presentation of the notice will be governed by rules and conventions of good practice defined by the industry, and notably by the French advertising regulation authority”.

Then, Article R.  2133-6 of the Public Health Code lays the obligation to mention the notice on advertisers who “shall ensure that the legal obligations found under Articles L. 2333-2, R.  2133-4 and R. 2133-5 of the Code are respected. To this end, they must ascertain whether the photographs used for commercial purposes which they purchase, directly or via third parties, were or were not retouched using image processing software with a view to slim down or flesh out the model's silhouette”.

Failure to comply with such obligations results, according to Article L. 2133-2, in a €37,500 fine which can be brought up to 30% of the expenses devoted to the advert.

The implementation of these new provisions raises several questions from a practical standpoint, which we address in our contribution for JIPLP: stay tuned!

[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).]