Beauty and the Brand: Drafting contracts for the commercial use of someone's likeness

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Beauty and the Brand: Drafting contracts for the commercial use of someone's likeness

Published 14 October 2020

This article is the Authors’ Original Version of a forthcoming peer-reviewed publication in the Journal of Intellectual Property Law & Practice, published by Oxford University Press. 

Introduction

When does a model own her own image? This was the question posed by American fashion model Emily Ratajkowski in her September 2020 exposé for New York Magazine entitled, “Buying Myself Back: Emily Ratajkowski on Reclaiming Her Own Image”.1 The 7,000 word article addressed many aspects of the often fought working relationships as between models, photographers, agents, and more. But underpinning the entire piece is the question of control over how Emily appears in the public sphere.

In the opening paragraphs, she tells of her confusion when a photographer sued her for copyright infringement: she had posted a photograph he had taken of her, without his consent, on her Instagram account. She recounts that her lawyer told her, “despite being the unwilling subject of the photograph, I could not control what happened to it.”

It is well established that English law currently does not recognise a unified image right, which is known generally in the United States as a right of publicity, and in Europe as personality rights. In practice, this means that as Emily discovered, the photograph’s subject is not entitled to control the image in question without permission from the relevant copyright owner or its licensees. Even in jurisdictions with strong personality rights, the issue is rarely straightforward, and legal questions often turn on privacy, commercial context, and the unique circumstances of the person’s public profile.

Notwithstanding this however, freedom of contract provides ample opportunity for a photograph’s subject (Talent) to exert at least some control over how another entity (Brand) uses her image. And, importantly, the contractual relationship need not be zero-sum. This article explores nine practical issues and aims to show it is possible to protect the interests of both the Talent and the Brand.

Practical Points to Consider

01. Picture this: Defining "image" and its usage 

What comprises the Talent’s ‘image’? Once the Talent agrees to work with the Brand, the parties must agree as to which aspects of the Talent’s image are to be used. However, ‘image’ is a nebulous concept, and can and often does mean much more than just a picture. Although the Talent’s image will almost certainly include photographs of her face or body, her image could also include other audiovisual content which portrays her likeness or otherwise refers to her as a unique person.

This may include her legal name, nicknames and social media handles, signature, film footage, voiceovers, illustrations, realistic digital renderings, biographical information, or indeed any other elements or characteristics of her persona, identity, or personality. Because the Brand is usually the one providing the agreement, it is usual to see the definition of likeness drafted very widely as a starting position. Where the Talent is an established public figure or otherwise seeks a more limited commercialisation of her image, a narrower definition is to be expected.

What is the scope of the permission to use the image? Once ‘image’ is defined, it will be necessary to set out the actual parameters of usage. The widest of these would permit the Brand to use the image in any manner, in any medium, for any purpose, in any jurisdiction, perpetually. This provides the Brand with unfettered rights to use and reuse the image as desired, and will likely avoid any specificity.

However, whilst a Brand may want flexibility to use the Talent’s image across a variety of materials, the Talent may only feel comfortable with a more limited usage. Context is likely to be key, here, and in particular where the Talent has already engaged in similar commercial endorsements with other companies. For example, to avoid breaching pre-existing exclusivity arrangements, it may be essential to include carve outs as to the specific products or services which are to be promoted by the image.

The Talent with more bargaining power may try to limit usage and duration for other reasons as well. If the Talent is known as an ethical vegan for example, it is reasonable to assume that she may seek to prevent use of her image in connection with leather goods or dairy products. Because usage is all about context and specific scenarios, these clauses may involve substantial negotiation and a balanced approach, especially for campaigns with high-profile Talent and well-established Brands, is common.

02. Is this pose for free? Payment and payment in kind 

Cash money. Payment to the Talent in exchange for use of her image can be structured in a variety of ways. Up-front fees often the most straightforward, but royalties, perhaps based on the success of the marketing campaign in question, may also be appropriate. In any event, specifying in detail how payments will work to include any regular disbursements is always best practice.

Where payments are staggered or contingent upon certain targets or events, it would be prudent to address scenarios which could impact – both positively, as well as negatively – the success of the campaign. Things worth considering could include if the Talent’s promotional activities yield better-than-expected marketing results, or if she otherwise goes above and beyond in her promotional activities. On the other end of the spectrum, it may be necessary to reserve withholding of future payments if the Talent substantially damages her reputation, or that of the Brand.

Payment in kind. If the Talent is not particularly well-established or known in the target market, a Brand may offer payment in kind: gifts, holidays, products or indeed even just discounts on any of these things are often used as consideration. Where this is the case, the drafting should clearly reflect that the gift or experience represents full and final payment. Furthermore, special care should be taken to ensure that any licences or assignments are not deemed unenforceable due to lack of consideration.

Is publicity a type of payment? A Brand may also promise to give the Talent “exposure” through its social media accounts or other advertising. Where exposure is used as consideration, this is typically coupled with a contractual acknowledgement that such publicity is “good and valuable consideration”. That said, this approach is becoming increasingly unpopular and should be treated with caution. In recent months especially, models, influencers, actors and others whose personal brands are used for the financial gain of others are increasingly seeking more market-rate remuneration, or at the very least, some form of nominal payment or expenses.

03. She's got the look: Modfications and appearances 

Photo editing. Some of us will have personal experience with enhancing our own photos through filters and makeup apps, before posting them to social media. In the same way, a Brand will want the right to change the way the Talent looks and typically, this is often set out simply as a right to modify the content, with no further specificity. However, a Brand should note that modifications and alterations the photo editing stage can be risky, especially when changing the appearance of the Talent’s weight, skin tone, hair, or distinguishing features.

Beyoncé’s sister and fellow singer Solange Knowles2, and Kenyan-Mexican actress Lupita Nyong’o3 both appeared in separate photo shoots only to have the appearance of their hair substantially edited. In both instances, the women expressed their frustration and disappointment with the decision taken by the publications. This in turn resulted in wide-spread backlash against the respective magazines, especially amongst the African American and BAME communities. In some circles, the modifications were labelled as form of subtle or covert racism.4

In addition to changing the appearance of the Talent’s weight, skin colour or hair, it is best not to assume that other “improvements” will necessarily be welcomed by the Talent, either. When Simone Welgemoed, a deaf ballet dancer, appeared in an advert for Virgin Active, her cochlear hearing implant was airbrushed out. Although the contractual position covering the photograph is unknown, what matters is the reputational damage which followed. The dancer immediately took to Facebook to complain about the decision in an open letter to the gym group, saying: “I guess my cochlear implant shamed you so much that you had to edit it out. Well you just edited out a part of who I am and didn’t ask my permission and I’m not ok with that”.5

Upon being made aware of Simone’s reaction, Virgin Active restored the original photograph and met with the dancer to apologise in person. She then posted on Facebook again, noting that, “together we can raise the awareness that shows the beauty in imperfection. I look forward to our future projects." Regrettably for Virgin Active, this was not before news media from around the world picked up on the story to criticise the organisation and its apparent display of ableism.

Because inappropriate or unwanted modifications may damage the working relationship between the Talent and Brand, or otherwise lead to public backlash, it is recommended that any major changes be discussed in advance. That said, pragmatic compromises are certainly feasible. The Brand could be permitted to edit out blemishes, wrinkles on clothing (or indeed the face!), for example, but not to remove freckles or scars.

Procedurally, it is important to ensure that those involved at the photo editing stage are made aware of any such clauses. Even standard photo editing techniques such as adjustments to contrast, changing hue levels and saturations, as well as correction of angle and perspective can all dramatically change the Talent’s appearance, to say nothing of the more sophisticated enhancements.

Appearances IRL (in real life). For longer-term arrangements such as endorsement contracts, it may be desirable for the Brand to stipulate the on-going requirement that the Talent maintain her physical appearance. This is often the case where live appearances and publicity events are involved, during which the Talent may be asked to wear certain bespoke clothing or otherwise where digital modifications of an image are not possible.

It is therefore not uncommon for professional performers, athletes, and other celebrities to be contractually obliged to maintain a fit and healthy lifestyle which retains and protects their appearance, including their face, body dimensions, physique, weight, and hairstyle. Where this is of critical importance to the Brand, dramatic changes to any of the above may be drafted so as to constitute grounds for termination, or else require consent. However, in light of body positivity and acceptance movements, as well as consideration for the Talent’s mental and emotional wellbeing more generally, such clauses should be treated with caution and included only where reasonable.

04. My image, my choice? Determining creative control 

In addition to potentially changing the Talent’s physical appearance through airbrushing and other digital enhancements, a Brand will want to make other creative decisions about the image as a whole. Such control is important to ensure that the image sits well with other content and marketing materials, as well as its business objectives more generally.

Many agreements require the Talent to acknowledge that the Brand has sole discretion regarding editorial decisions, as well as how it is ultimately promoted, shared, and displayed, or indeed sub-licenced. Accordingly, the Talent is often asked to relinquish most (if not all) editorial control over how her likeness is used or commercialised. If the Talent is meant to upload the content to her own social media accounts, the Brand should ensure that an approval mechanism is in place before the image goes live.

The Talent, on the other hand, will also want some element of control. The mere fact that the Talent’s likeness is to be shared with thousands or even millions of others does not make it any less personal for the individual depicted. For personal as well as professional reasons therefore, the more established performer, model or celebrity may wish to be consulted before any images are publicised. Prominent public figures with strong personal brands may also seek to have some input on the marketing strategy or business plan associated with their likeness.

Irrespective of which party ultimately wields the most creative control, the language surrounding the process should be prescriptive to avoid uncertainty. For example, the requirement to consult the other party could pertain to “any and all media, featuring or relating to the Talent in whole or in part, prior to the distribution or any publication of such content.” Where consent is not practical or desirable in the circumstances, notification requirements before publication may be a suitable compromise.

05. Confusing copyright: Legal ownership vs practical permissions 

Copyright arises automatically to protect the unique and creative effort of the creator, once the work is expressed in a fixed medium. That there is a human subject depicted in the image makes no difference as to intellectual property rights per se: copyright vests in the photographer or artist, who is then free to assign or licence those rights as they wish.

Although this is a straightforward concept for legal practitioners and scholars, it can be a difficult point to impress upon those unfamiliar with copyright law – which may include the Talent herself. The idea that the Talent should technically require consent from the rights holder to post an image in which she is depicted is often seen as counterintuitive. In Emily Ratajkowski’s case, as with countless others who have expressed a similar frustration, it can be presented as unfair or even unethical.

To this point, it may be considered beneficial to set aside strict interpretations of copyright, and instead allow the Talent to share the images associated with the campaign. Drafting to this effect takes into consideration the pervasiveness of social media, as well as the innate desire many of us have to share work that we have contributed to, or otherwise helped to shape.

A provision could firstly stipulate that the Talent is entitled, upon reasonable request, to be provided with a copy of any material produced or which the Brand intends to release to the public. This could include any advertising, promotional and marketing material relating to the Talent. Secondly, the provision could then expressly permit the Talent to use the content for purposes which do not compete with those of the Brand. As an additional safeguard for the Brand or rights holder, the clause could carve out certain platforms or embargo periods, or otherwise impose a requirement that the Talent include a link back directly to the Brand.

06. What did you just call me? Reputation management 

Unlike legal persons, natural persons lead intimately complex and multi-faceted lives, with professional, personal, and private dimensions. Everyone makes mistakes, and most people can recall a time in which they forgave a friend or family member for a misstep – or else sought forgiveness themselves. And naturally, the Talent depicted in a photograph is of course a human capable of error.

Unfortunately, the mistakes of notable individuals are often put under the spotlight, and damaging remarks or actions can prove impossible to erase from the public’s collective memory. If the Talent is involved in a scandal, a Brand seek to swiftly distance themselves. Although this seems like an obvious point of common sense, it can be difficult to manage absent the requisite contractual provisions. There are two key clauses which may consequently merit inclusion: an anti-disparagement clause, and a so-called morality or morals clause.

Anti-disparagement clauses. Anti-disparagement clauses are conceptually related to non-disclosure provisions, but are specifically tailored to cover statements which may harm the reputation of the other party. Such clauses require the obliging party, typically the Talent, to not make or communicate to any person or in any public forum any defamatory or disparaging remarks about the Brand. This may be drafted widely to include comments related to the Brand’s employees, officers, products, services, business conduct, and so on. To avoid issues with enforcement, it is advisable to include a carve-out to make clear the Talent may make truthful testimony in connection with legal claims, or to government and regulatory agencies.

Anti-disparagement clauses may also be included for the benefit of the Talent, although this position is somewhat less common. In such cases, especially where the Brand retains editorial and creative control over the content, the Brand may be prohibited from using the Talent’s image in a derogatory or demeaning manner. Of course, as with non-disclosure agreements, once the offending content is made public, it may be impossible to materially supress. Remedies may prove perfunctory, irrespective of what the contract may state.

Morality (morals) clauses. Morality or morals clauses function as an escape hatch for the Brand in instances where the Talent has done something to hurt her own public image. Also known as a “bad boy/girl” clause, these provisions seek to prevent the Brand from being damaged by association.

As a starting point, many service contracts with individuals do cover what happens on the occasion that the person is convicted of a criminal offence. But morality clauses go one step further, and address behaviours or statements which are not necessarily illegal. Furthermore, they also cover comments which are not directly defamatory about the Brand, or necessarily caught by the anti-disparagement clauses described above.

Tennis star Maria Sharapova is one high-profile example: her corporate sponsorships were jeopardised when she was found to have violated the strict anti-doping regulations of her sport, despite the medication in question not being a narcotic.6 Far more recently, influencers have been dropped from campaigns after they flaunted their failure to respect social distancing guidelines and shelter in place (lockdown) requirements, implemented during the global coronavirus pandemic.7

A morality clause might prohibit the Talent from participation in certain types of publicised political debate, reckless behaviour which endangers the safety or well-being of themselves or others, and recreational drug usage which would jeopardise the reputation of the Brand. Comments which are sexist, homophobic, racist or offensive are also frequently covered. If attempting to prohibit statements which could be simply unpopular, however, it should be noted that high-profile celebrities and personalities are increasingly using their platforms to voice their opinions about social and political issues.

07. Taking a stand: Corporate philosophies and ESG 

Just as a Brand will want protection against negative implications stemming from the Talent’s bad behaviour, the Talent may likewise be interested in how the Brand behaves. Research shows that consumers are increasingly concerned about environmental, social, and governance (ESG) issues when making purchasing decisions.8

Watershed moments and social movements such as Black Lives Matter and Me Too have received considerable press coverage in recent months, but other important issues include LGBTQ+ diversity and inclusion, as well as equal pay for women and commitment to paying living wages. In the fashion industry in particular, environmental sustainability of manufacturing processes and textile workers’ rights regularly feature at the top of consumer concerns.

Together with (and perhaps in part because of) this public pressure, celebrities and influencers are now more likely to use their public status to advocate for corporate change. Companies are also using ESG issues as an opportunity to improve their own public perception, or otherwise to differentiate themselves in a crowded field. British fashion retailer Jigsaw9 and UK-headquartered financial giant HSBC10 notably launched prominent pro-immigration campaigns, ostensibly in light of the United Kingdom’s referendum to leave the European Union.

A Brand should therefore be alive to the fact that the Talent may wish to work with a company whose values mirror her own. Furthermore, celebrities and consumers alike may have little appetite to overlook comments made by executives which are homophobic, sexist, racist, or just plain rude. Several years ago, the founder of American athleisure retailer Lululemon infamously made derisive remarks about overweight women wearing his company’s yoga leggings.11 This caused considerable public backlash and substantial brand damage, ultimately leading to the founder’s resignation.

From the Talent’s perspective, it is easy to understand why someone might not want to be associated with a Brand whose leadership is liable to make distasteful comments, or otherwise fails to take a stand on important social matters. As part of her due diligence, the Talent may seek to ensure that the Brand is not engaged in unsavoury ESG practices, as doing so may harm the Talent’s goodwill. While it might not be necessary to include specific ESG wording in an agreement, a Brand should be conscious that the Talent may consider the Brand’s values when deciding whether or not to collaborate.

08. When life gets in the way: Contingency planning 

If 2020 has taught us anything, it is that even seemingly immutable ways of working and socialising can be disrupted. This is important to consider especially where the Talent is expected to carry out a series of engagements or activities under her contract with the Brand. In such cases, it may be sensible to address what happens if the Talent’s performance of her obligations is disrupted or materially suffers for whatever reason.

Rather than use a boilerplate force majeure clause, this provision should ideally be tailored to cover the Talent’s particular circumstances, bearing in mind her other professional and personal commitments. It may also be worthwhile to consider having notification procedures in place for extenuating circumstances, for example late submission of social media content, or late arrivals for events. Such scenarios need not necessarily trigger termination or even a temporary suspension of the working relationship: instead, the clause is primarily intended to encourage communication.

Provisions of this type typically begin with an acknowledgement by the Talent that her professionalism and reliability reflect on the Brand. Accordingly, the Talent should agree to not cancel or fail to attend any promotional event or scheduled appearance without a valid excuse. In addition (or in the alternative) the clause may oblige her to promptly notify a Brand representative if an extenuating circumstance arises. As for what constitutes a valid excuse, medical emergencies (either with or without provision of a doctor’s note) are a common feature, and may include either the Talent’s medical emergencies or those of her family.

09. More than just a pretty face: Remember the human element 

It is often tempting to use template photograph licences and standard release forms when seeking to use an individual’s image for advertising or promotional campaigns. And indeed, in some scenarios, these contracts do serve their purpose adequately. But it is also worth pausing to note that to date, many precedents still contain onerous or unbalanced provisions which may no longer be appropriate.

Some contracts, for example, require the Talent to waive all of her rights in the image, together with any rights she may have to make a claim for privacy invasion, defamation, or even – alarmingly – any harassment she may experience whilst in the studio or on set. If nothing else, inclusion of such clauses may serve to deteriorate the trust or goodwill between the parties.

The final piece of guidance in this Practice Point is therefore perhaps the most important. Contracts concerning the use of someone’s likeness may necessitate a nuanced approach to drafting, and particular attention should be given to context, reputation, and the most unpredictable variable of all: human emotion. Although it may not always be possible to agree to each of the Talent’s requests regarding how her likeness is treated, it is always possible to address such requests with respect.

As famed photojournalist Eve Arnold, OBE, Hon. FRPS said, “If a photographer cares about the people before the lens and is compassionate, much is given. It is the photographer, not the camera, that is the instrument.” For our purposes, ‘Brand’ could be substituted for ‘photographer’. In a world seemingly flooded with manipulated and airbrushed content, it is all the more important to engage in open and honest dialogue with each other.

References

1Ratajkowski, E (2020). Buying Myself Back. New York Magazine. Available at; www.thecut.com/article/emily-ratajkowski-owning-my-image-essay.html

2Schmidt, S. (2017) Solange Knowles sang ‘don’t touch my hair.’ But a U.K. magazine did just that. The Washington Post. Available at: https://www.washingtonpost.com/news/morning-mix/wp/2017/10/23/magazine-apologizes-to-solange-knowles-after-editing-out-her-braids-on-its-cover/ 

3Ruddick, G. (2017) Lupita Nyong’o accuses Grazia of editing her hair to fit 'Eurocentric' ideals. The Guardian. Available at: https://www.theguardian.com/film/2017/nov/10/lupita-nyongo-grazia-editing-hair-eurocentric

4March, B. (2018) Lupita Nyong’o on African hair being “painted as uncivilised”. Harpers Bazaar. https://www.harpersbazaar.com/uk/beauty/hair/a22672098/lupita-nyongo-hair-interview/

5Zatat, N. (2017) Virgin Active apologises for editing out deaf model’s cochlear implant in campaign photo. The Independent. Available at: https://www.independent.co.uk/news/world/africa/virgin-active-photoshopping-deaf-model-simone-botha-welgemoed-model-cochlear-a8025921.html

6Steinberg, J. (2016). How serious was Maria Sharapova’s doping? The Guardian. Available at: https://www.theguardian.com/sport/2016/jun/10/how-serious-was-tennis-player-maria-sharapova-doping

7Perelli, A. (2020) Brands are still hiring influencers who party during the pandemic. Business Insider. Available at: https://www.businessinsider.com/youtube-and-influencer-business-trends-newsletter-september-24-2020-9?r=US&IR=T

8Heinisz, W. et al for McKinsey & Co. (2019) Five ways that ESG creates value. McKinsey Quarterly. Available at: https://www.mckinsey.com/

9Ekall, J. (2019) Jigsaw's Brexit-Inspired 'Heart Immigration' Campaign Is Nailing Wokeness Like No Other British Brand RN. The Huffington Post. Available at: https://www.huffingtonpost.co.uk/entry/jigsaw-heart-immigration-adverts-2017_uk_59de2470e4b0b26332e8556c?/

10Stewart, R. (2020) HSBC's 'We Are Not an Island' ads return with pro-immigration message. The Drum. Available at: https://www.thedrum.com/news/2020/01/14/hsbcs-we-are-not-island-ads-return-with-pro-immigration-message

11Stoeffel, K. (2013) Sad, 'Fat-Shaming' Lululemon Founder Steps Down. New York Magazine. Available at: https://www.thecut.com/2013/12/sad-lululemon-founder-steps-down.html

Authors

Kelsey Farish

Kelsey Farish

London - Walbrook

+44 (0) 20 7894 6320

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