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Using someone's image in your advertising

Celebrities and public figures have been featured in advertisements for centuries. But thanks to social media, these days even non-celebrities have the opportunity to act as powerful advertising agents for various products and services. Over the last few years, we've seen influencers from all over the world - and from practically every community - establish their own personal brands and narratives through interesting content and engagement on Instagram, Snapchat, and Youtube. With people increasingly turning to influencers for recommendations on purchasing decisions, it's no wonder that companies and brands are partnering with influencers for promotions, fashion campaigns, and other marketing.

While these tips below have been written primarily for a company ("Brand") or an individual model ("Talent") to consider, some of the points such as modification and credit, be useful for photographers and other content creators, too.

01. Put it in Writing

When seeking to use a photograph of someone - whether they are an employee, friend, influencer, or professional model - it is best practice to ensure that the arrangement is captured in writing, as either a model release form or an image licence. A licence is simply permission to do something that would otherwise not be allowed. Accordingly, an image rights licence is a contractual way for someone to use someone else's image in their promotions and marketing. These are commonly presented as letters written from the perspective of the Brand to the Talent, for the Talent to sign. Such letters can also reference that the Talent will follow applicable standards and policies, such as a social media policy.

Practical tip:  Be specific - and you don't always need "legal jargon"! Even if you're not working with a lawyer to draft the licence, adding an extra sentence or two about the things that are important to you can save you from headaches down the line. Use straightforward language to avoid confusion.

02. Data Protection and Consent

It's fairly obvious that a photograph of a person will be considered personal data under GDPR and the DPA 2018 if it can identify a living person. But did you know that certain types of clothing can make the image “special category” or “sensitive” data, if they reveal a religious, ethnic, or political belief, or one’s health information? For example, an image of somene wearing a headscarf may be considered religious information, just as an image showing someone with their medical device may be considered health data. Of course, items which are mere “fashion accessories” or “props” will be distinct from those which are used genuinely, but in any event it’s best practice to include some wording to the effect that both parties will follow data protection and privacy rules. 

As with all personal data, an entity will need to rely on a lawful basis (justification) in order to process or otherwise use someone’s image. Due to the deeply personal and unique nature of one’s photograph, it is usually best practice to rely on the lawful basis of consent. This means that in order to use someone's photograph, you should obtain their informed written consent first. Consent may be withdrawn at any time, so you may wish to consider having alternative images with other individuals available.

Practical tip:  Even though the GDPR is a European Union regulation, it still applies in the United Kingdom through the Brexit transition period (i.e. through 31 December 2020). The Information Commissioner's Office has some good guidance on data protection, on their website.

03. Exclusivity

As in any relationship, the Talent and the Brand need to decide to what extent the Talent can engage in other activities. Exclusivity is a major concern for brands, because the more saturated a person’s image becomes in a market across multiple brands, the less potent it will be in terms of brand recognition. Take Bela Hadid, who regularly has more than 10 separate endorsement deals on at a single time. A consumer might think, "oh, I remember Bella Hadid was in a fragrance advert – but was it for Dior, or Calvin Klein?" Furthermore, if the Talent is seen endorsing a Brand's competitor around the same time, it can cause a lot of confusion amongst consumers.

Italian fashion blogger and influencer superstar Chiara Ferragni for Pomellato jewellery...

...but Chiara has also worked with apm Monaco, another fashion jewellery company.

Therefore, a Brand may try to restrict the Talent’s activities, with reference to a product or a particular time period. For example, this could mean that the Talent is prohibited from endorsing fragrances or shoewear for six months or a year. Regardless of the limitations, the exclusivity clause will need to be really clear, and a Brand should remember that it may be difficult to enforce the clause if you try to restrict the Talent’s activity too much. Unreasonable prohibitions on the Talent to freely work with others may be viewed as a "restraint of trade", which is often unenforceable at law.  Because these deals may be an important part (or indeed the only part) of the Talent’s income, so there’s a human side to consider as well.

Practical tip:  If the Brand is concerned about the Talent disclosing sensitive commercial information to its competitors, confidentiality agreements or "NDAs" are a practical option. 

04. Duration and Usage

This is the main question an image licence seeks to address: once you agree to collaborate, what is the image actually going to be used for? Is it going to be online, or in printed materials? Will it be used for internal communications, or for customer-facing materials? How long does the Brand intend to exploit the image?

The starting point may be to use the image for one particular product or season only, but a Brand would be wise to consider the future. What if the product doesn’t launch as planned? What if the campaign goes exceedingly well, and the Brand wants to re-use the Talent’s image later for another product?

Because the Brand is usually the one writing the image licence from their perspective, it is usual to see these operative provisions drafted very widely. For example, the Brand may include a clause that permits them to use the image in any manner, for any campaign, for five or ten years - or even "perpetually" (forever).

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. They may not want the image to be used in a certain way, or to suggest that they have a particular affiliation. If your Talent is an ethical vegan for example, they may seek to prevent you from using their image in connection with leather goods. Because usage is all about context and specific scenarios, these clauses usually require substantial legal drafting and negotiation to ensure everything works together in practice.

Practical tip:  The Talent may have exclusivity arrangements with other brands. Before using the Talent's image in association with a product, they will likely need to ensure that it does not conflict with other commitments.

05. Modification

Who doesn’t love a good Instagram filter? This is one aspect that I feel my “practical” experience with airbrush apps has helped me to become a better lawyer, because I really do appreciate the temptation (or need...) to alter images and to smooth out imperfections. And just like we do in our personal capacities, a Brand will want to reserve the right to change the way the Talent looks in photos. However, doing so can be risky, especially when you’re changing the appearance of someone’s weight, skin tone, hair, or distinguishing features such as scars.

Solange and Lupita Nyong'o both appeared in magazines but had their hair edited, which received a lot of backlash especially amongst the African American and BAME communities. Even making changes that would widely be perceived as “improvements” can be risky. Keira Knightley for example was very publically upset when her breasts were digitally enhanced for Pirates of the Caribbean advertising. Simone Welgemoed, a deaf ballet dancer, is another example. She appeared in an advert for the Virgin Active gym group, but her hearing implant was photoshopped out without her permission. This led to consumer backlash – and Simone herself was really offended.

Inappropriate or unwanted modification may compel the Talent to withdraw their consent to use the image (as noted in point 2, above), or otherwise damage the working relationship. It is therefore always best practice to discuss any proposed modification with the Talent in advance.

Practical tip:  It's often possible to reach a compromise. You won't know until you ask! For example, the Brand may agree to edit out blemishes or flyaway hair, but not remove freckles or dramatically change the skin tone.

06. Reputation Management

Because social media and cameras are everywhere these days, people are usually just one tweet or Instagram post away from saying - or being caught doing - something really stupid. Once it’s out in the public domain, damaging remarks or actions are essentially impossible to retract or erase from the public's memory. In some ways, the relationship between the Talent and the Brand is a bit like an employment contract, because the Talent is the Brand’s public image. And it’s important to remember that models, influencers, actors, athletes… are all just people, and people make mistakes sometimes.

When Talent gets involved in a scandal, a Brand might want to distance themselves or otherwise drop them from the campaign. But this can be difficult to do contractually, because saying something stupid on Twitter or being caught on video smoking weed isn’t necessarily a “crime”. So in order to give a Brand an “escape” from their relationship with the Talent, endorsement or image agreements usually have some sort of morality clause. This essentially means that if the Talent does something naughty, even if it’s not illegal per se, the Brand can terminate the agreement or withhold payment if the Talent’s public image suffers. (I've written on morality clauses extensively, including here and here.)

For balance, the Talent may seek to have the Brand to promise that it will not use the Talent's image in a demeaning or otherwise inappropriate manner. In addition to risking the withdrawal of the Talent’s consent, the Talent may have a cause of action in a defamation or harassment claim, if their image is used in an offensive way.

Practical tip:  An example morality clause may be something like, "The Talent MAY NOT participate in certain types of publicised political debate or drug use (other than for medical purposes) which in the Brand's reasonable opinion would jeopardise the reputation of the Brand."

07. Environmental, Social, and Governance Issues

In the same way that Brands want to be protected from the Talent’s bad behaviour, the Talent can also be interested in how the Brand behaves. Research shows that consumers are increasingly concerned about environmental, social, and governance issues ("ESG"), and so too are influencers, models, and other people in the public eye. It’s also becoming more popular for brands to take more of a public stance about the key issues of our time… including immigration and Brexit.

Therefore it may be a winning strategy to disclose the things that your Brand does well in these areas, or to do some due diligence to ensure that you work with Talent that aligns with your Brand philosophy. My advice to Talent is usually the same: it makes sense to work with someone whose views don’t conflict with your own, because in the age of #MeToo, climate change, textile workers rights, diversity and inclusion, the gender wage gap… all of these political and social stances are likely to have a business impact, too.

By way of example, in 2018 a top exec at Victoria’s Secret made some derogatory comments about transgender models, and the brand’s image suffered as a result. It’s easy to understand why someone might not want to be associated with a brand whose boss makes comments that they find distasteful or unpopular. As such, the Talent may seek to ensure that the Brand is not engaged in unsavoury ESG practices, as doing so may harm the Talent's reputation by association.

Practical tip:  While it might not be necessary to include ESG-specific wording in an image agreement, a Brand should be conscious that the Talent may consider the Brand's values and ESG approaches when deciding whether or not to collaborate.

08. Payment and Acknowledgement

Payment can be cash money, but it can also be payment “in kind” – which means gifts, holidays, and products. If that’s the case, you need to make it very, very clear that the gift represents full and final payment. In terms of actual monetary payments, a Brand can structure this in a variety of ways. For example, a Brand could pay a certain fee up front, and then have staged payment intervals for a period of time thereafter.

As for what is an appropriate payment rate, this will often depend on the Talent’s value or perceived value in the given market. In other words, bargaining power is a key aspect, here. It is also worth considering whether or not the Talent seeks to have a sort of credit or link back to their own social media platform when you use the image.

Crucially, it is also important to double check the applicable regulations on advertising. In the United Kingdom, the Advertising Standards Authority (ASA) and Competition and Markets Authority (CMA) codes on influencer advertising and guidance are worth checking.

Although specifying things like bank accounts, currencies and fees may seem trivial, it is worthwhile to clarify how the payments are actually going to work in practice. It may be helpful to specifically address management fees, currency flux, bank accounts, gifts, payment in kind, penalties, method of payment, and so on.

Practical tip:  Be sure to double check things like tax implications, especially if you’re self-employed or working with someone based outside of your jurisdiction (as tax rules may differ substantially).

09. The Human Element

My final bit of advice is perhaps the most important: it is essential to remember the human element when using someone's image in your marketing campaign. Engaging in open and honest dialogue is key, as is recognising that the Talent's wishes as to how their image is used should be treated with respect. Furthermore, including onerous provisions in an agreement (such as insisting that the Talent waive all of their rights in the image) could cause a deterioration of trust or good will between the Talent and the Brand.

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