bloglovinBloglovin iconCombined ShapeCreated with Sketch. Fill 1Created with Sketch. Fill 1Created with Sketch. Fill 1Created with Sketch. Fill 1Created with Sketch. Fill 1Created with Sketch. rssRSS iconsoundcloudSoundCloud iconFill 1Created with Sketch. Fill 1Created with Sketch. Fill 1Created with Sketch. Fill 1Created with Sketch. close searchCreated with Lunacy

How A Supermodel’s Post Could Influence Copyright and Photo Law

a supermodel who could be influencing copyright and photo law

So, you may have missed this lawsuit filed over the summer, Summer 2019, and it was an interesting one in the world of copyright and photo law. Gigi Hadid who, of course, is a famous supermodel, was sued for copyright infringement. And here a couple little details.

Background of the lawsuit

A paparazzi company filed the lawsuit and claimed copyright over a photograph of Hadid.

The photographer took the photo of her as she was exiting a building. Instead of hiding her face or running away, she smiled and posed and of course the cameras clicked away. Well, when she saw the photograph, she liked it, cropped it, posted it to her Instagram account, and, of course, that’s what caused the copyright infringement allegations and lawsuit. She stopped and smiled and posed for this photo — which is her profession. And then was sued for using it.

Well the judge threw out the lawsuit because you have to have a registered copyright in order to file a lawsuit, and the paparazzi company hadn’t registered the photograph in time to file the lawsuit. (Silly mistake.)

How this situation could influence copyright and photo law

The question is this: Is it infringement for a professional model to post a photo of herself that she did not own where the photograph wasn’t candid and she had actually participated in the creation of this photo?

Before the suit was dismissed, her lawyers alleged fair use and implied license. “Implied license” means that somehow, the photographer granted Hadid permission to use the photo because she participated in creating it. (That’s a toughie.)

We won’t know, of course, whether these arguments would pass muster in a lawsuit since the lawsuit was thrown out. But maybe another celebrity could make this argument. “Because the subject participated in creating this photo, there was some kind of joint-ownership or joint-creation by the celeb/subject. And, thus, no copyright infringement.” Now that could really change copyright and photo law.

I want to be clear that I’m not talking about your ordinary session. (One with a couple or a family or children.) That’s different. What we’re talking about here is the context of photos taken in public, by paparazzi, of a celebrity who just happens to pose and, arguably, aid in the creation of photos.

The judge dismissed the case, so we’ll never know what might’ve been. Still, it’s interesting to think about what might happen in the future for a similar case under similar circumstances.

What’s that? Free info? Yes, please. Click below to learn four things you can do right now to protect your business online. 

Anatomy of an Influencer Endorsement Contract

If you have a dedicated following in your niche market, you might have dipped your toe in the affiliate pond, creating sponsored content with brands that you adore or just plain believe in. Or, you’ve found the perfect ambassador for your brand. Someone with a decent sized following that is (more importantly) very engaged. You know your sales will take off after affiliating with this influencer.

Sound familiar? Then this post is for you. It dissects some important provisions that a brand owner and influencer are likely to hash out when entering into an Influencer Endorsement Contract. Remember, contracts are you friend! (Or they should be.) A good contract makes sure both parties are on the same page so there is no ambiguity. It eliminates the need to comb back through texts, emails, or DMs to figure out what you agreed upon.

Disclaimer: Of course, this doesn’t cover each and every provision you’ll find in an Influencer Endorsement Contract. It does go through some important provisions that a good Influencer Endorsement Contract should cover. When in doubt, please contact a lawyer.

The Sponsored Content & Platforms.

A good Influencer Endorsement Contract will get very specific on the deliverables. And “deliverables” means whatever the Influencer is providing or “delivering.” What type of content are we talking about — a photo + caption? Photo or video-only media (like Instagram Stories or Snapchat)? A blog post? A blog post and a photo + caption? There shouldn’t be any question as to what’s covered, here.

Frequency.

Is the Influencer expected to post daily? Weekly? Monthly? Or maybe this is a one-off, one-time thing? Either way, a good Influencer Endorsement Contract will spell it out.

Exclusivity in Brand’s Field.

Many times, an Influencer will be expected to say “sorry, no” to brands competitive with the brand that’s hiring them for a specific endorsement campaign, at least for a certain amount of time during and/or after the term of the relationship with this brand. If that’s the case, the Influencer Endorsement contract should say so. It should also specify the exclusivity period that applies after the contract ends. One month? Three? A year? 

IP Ownership.

It’s common for IP ownership to go to the Brand, since the brand is paying the Influencer to post (and, sometimes, create) content in support of the Brand. Still, depending on the reach and “muscle” of the particular Influencer, ownership could go the other way. Either way, remember that copyright ownership usually goes to the creator by default. If Brand and Influencer agree otherwise (or even if they don’t), it behooves them to put that understanding in writing.

Compensation.

Compensation can come in the form of free goods provided to the Influencer, a lump sum payment, a percentage of sales, or some creative combination of these options. A sound Influencer Endorsement Contract will make the form of compensation, and other payment dates and details, clear.

Approvals and Brand Guidelines.

Approvals often come down to who has more bargaining power, although again, because the Brand is paying for an endorsement, a favorable Influencer Endorsement Contract should give some level of approval rights to the Brand. Many times a Brand will make Brand Guidelines part of the agreement. Brand Guidelines consist of text and image guidelines. For example, no swearing, no cigarettes, no religious references, no references to Brand’s competition by name, etc. An alternative to a Brand’s unfettered approval rights is to allow objection/rejection of content solely as it doesn’t comply with the Brand Guidelines. (After all, the Brand is likely familiar with the Influecer’s voice and style, or the Brand wouldn’t have the desire to enter into this agreement in the first place.)

Compliance with Laws.

Remember that FTC crackdown we’ve talked about? (Thanks, Fyre Festival.) The Influencer Endorsement Contract should make clear that whoever is responsible for the copy — whether that’s Influencer or the Brand — is responsible for complying with the FTC’s guidelines on disclosing that promotional connection between Brand and Influencer. 

So what’s a guy or gal to do when it comes time to enter into an influencer-brand sponsorship arrangement? You have options. For a bespoke contract that speaks to your each and every need, you can (and should) contact a lawyer. But for the DIY-ers out there, Spear IP is officially releasing an Influencer Endorsement Contract Template as part of its contract template arsenal! Click below to check it out. And, for being a devoted follower of the Spear IP blog, use code BLOG for a $10 discount!

What’s next? Click here to download your [free] Essential Legal Checklist from Spear IP.

Pin this post:

anatomy of an influencer endorsement contract pin this post

A Legal Checklist for Selling on Etsy

Etsy is the first place that pops into mind when I want to find a special gift or something created by a small business owner. Want to open up shop yourself? This month’s blog post introduces Spear IP’s Essential Legal Checklist for Selling on Etsy.

Here’s a brief description of the topics you should expect from the Essential Legal Checklist for Selling on Etsy.

Business Structure

A lot of folks find themselves weighing the pros and cons of sole proprietorship versus something more structured, like a limited liability company. This list has some factors that could sway you one way or the other.

Tax and Licenses

You know e-commerce and the collection of sales tax was a hot topic with The Supremes last summer. Have you determined when and where you need to charge sales tax, if at all? What about a business license?

Trademark

By now you know a trademark is that brand name that everyone knows you by. The Essential Legal Checklist for Selling on Etsy walks you through a few general trademark considerations (and some Etsy-specific considerations).

Copyright

Copyright law governs not only your typical creative works, but some not-so-typical creative works. Registering with the Copyright Office, getting your contracts in place, and using contractors are all topics that are covered in this legal checklist for selling on Etsy.

Photographs and Artwork

Copyright and right of publicity are two different things. (Remember the client query, “A celebrity is wearing my brand“?) This checklist will make you think through using photographs and artwork properly.

Policies and E-Commerce

It’s hard to hold a customer to a return policy if you haven’t posted that return policy. Posting policies and truthful descriptions of products are both things to consider when opening up shop on Etsy.

And there you have it. Get the Essential Legal Checklist for Selling on Etsy here.

Pin this post:

What the SCOTUS Sales Tax Ruling Really Means

what the SCOTUS sales tax ruling really means spear ip fashion law internet law

Last week (specifically, on Thursday, June 21, 2018), the Supreme Court ruled on a South Dakota law relating to the collection of sales tax for online purchases. Cue a frenzy of brands and online retailers trying to decipher what this SCOTUS sales tax ruling really means. Here’s a breakdown of the decision.

Continue reading “What the SCOTUS Sales Tax Ruling Really Means”

You Can’t Protect a T-shirt Idea (But You Can Start a Lifestyle Brand)

protect a t-shirt idea lifestyle brands spear ip

“I have a REALLY great t-shirt idea.” “I’ve got an idea for a funny t-shirt slogan.” Many an IP attorney has heard this phrase at least once. Just like protecting an idea can be difficult, it’s challenging to protect a t-shirt idea. But a lifestyle brand? Now you’re talking. But be proactive: know how to safeguard the protectable elements of a t-shirt or lifestyle brand.

Continue reading “You Can’t Protect a T-shirt Idea (But You Can Start a Lifestyle Brand)”

Sponsored Content and Posting the Right Way

sponsored content and posting the right way

Ever watch an old television show and notice the not-so-subtle product placement that was so commonplace back then? “Gee, Mary, these dishes sure are clean. You must be using Palmolive soap again!” Fast forward 65 years and sponsored content is still alive, but the medium and pitchmen have changed. Influencers and celebrities use Instagram and other platforms to make big money. But times are a-changin’ again, thanks to crackdowns — er, gentle reminders — by the FTC. Continue reading “Sponsored Content and Posting the Right Way”

People Are “Total-ly” Suing Amazon for Counterfeit Eclipse Glasses

People are Suing Amazon for Counterfeit Eclipse Glasses

Those of you in the Nashville, Tennessee area remember the total eclipse that occurred last week. For two blissful minutes (or eerie minutes, depending on your perspective), the sun disappeared, the birds stopped chirping while the cicadas started, and there was a sunset on every horizon. After a flurry of “eye-popping” prices for eclipse glasses, some unscrupulous vendors began peddling counterfeit glasses — glasses that would not protect your eyeballs from the wonders of science. But is Amazon truly at fault?

Continue reading “People Are “Total-ly” Suing Amazon for Counterfeit Eclipse Glasses”

Second Anniversary: Blog Round-Up

spear ip legal checklist for modern business

This month marks the second (!) anniversary of Spear IP’s opening. You might notice that Spear IP started as a general intellectual property law practice. In its second year, Spear IP pivoted to focus on the fashion, hospitality, blog and new media, and tech industries, along with creative (non-musical) professionals. Here is a look back at the lessons learned and content shared on the Spear IP Blog during Year Two.

Continue reading “Second Anniversary: Blog Round-Up”

Making Sense of Labeling Requirements for Clothing and Apparel

fashion law and labeling requirements for clothing

Labeling requirements for clothing and apparel — what a topic! Many of us are now in the habit of asking where our food came from and what’s in our favorite snacks, and consumers, in increasing numbers, are starting to look at the makeup of our clothing. Fiber content and place of manufacture are but some of the items listed on a clothing label. This post provides some basic education on apparel labeling requirements.

Continue reading “Making Sense of Labeling Requirements for Clothing and Apparel”

Who Made My Clothes: Beyond Fashion Revolution Week

#whomademyclothes

Fashion Revolution Week is coming to a close. What is Fashion Revolution Week? It’s not just the movement behind the hashtag #WhoMadeMyClothes. The Fashion Revolution is a movement with the clear goal of encouraging consumers to be aware of where their clothing comes from, and making purchasing decisions based on that information.

Continue reading “Who Made My Clothes: Beyond Fashion Revolution Week”

Client Query: A Celebrity Is Wearing My Brand

a celebrity is wearing my brand

“Client Query” is a brief segment in which a common client question is broken down and answered. This month, Spear IP tackles that “OMG” moment… “A celebrity is wearing my brand!”

Continue reading “Client Query: A Celebrity Is Wearing My Brand”

Using A Personal Name As A Trademark

Using A Personal Name As A Trademark

Not everyone uses an arbitrary or fanciful brand name. Often times individuals or companies will just go with someone’s name (present company included). Read on for a list of considerations when using a personal name as a trademark. Continue reading “Using A Personal Name As A Trademark”