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May 17, 2023 | BusinessFashion

What Fashion Brands Should Know Before Posting a “Click-To-Buy” Image

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Author(s)
Olivia Loftin

Associate Attorney

Ellie Sanders

Graduate Law Clerk

Emerging technologies from AI to the metaverse are impacting every facet of modern life, and the fashion industry is no exception.  Recently, “click-to-buy” functionality has made it possible – and lucrative – for fashion brands to link a photo of clothing to a website where that item can be purchased.  Adding this new commercial element comes with certain legal implications that fashion brands, marketers and other players in the fashion business should be aware of.  An experienced fashion law attorney can help you navigate the do’s and don’ts of posting a click-to-buy image.

DO INCLUDE COMMENTARY TO AVOID TRADEMARK ISSUES

Under Section 43(a) of the Lanham Act, false endorsement occurs when a person’s identity is connected with a product or service in such a way that consumers are likely to be misled about that person’s sponsorship or approval of the product or service.  When a fashion brand posts a click-to-buy image that leads a user from the model’s image to an online point of purchase, the brand risks a claim of false endorsement from that model.

When evaluating this type of claim, New York courts use a balancing test to determine whether the public interest in avoiding consumer confusion outweighs the public interest in free expression guaranteed by the First Amendment.  If your click-to-buy image is posted alongside an article or any content that provides a commentary on the clothing depicted in that image, you will likely be within the safe harbor for expressive works under the First Amendment.  Expressive works will almost always outweigh consumer confusion in the balancing test, and thereby protect your brand against false endorsement or trademark infringement claims.  To ensure your post will be considered an expressive work, be sure to include commentary that is editorial, journalistic and creative in nature, and take care that your click-to-buy image is artistically relevant to that commentary.  The threshold for “artistically relevant” is deliberately low, so the focus should be on crafting a commentary to accompany your click-to-buy image.

DON’T USE A PHOTO OF A MODEL WITHOUT CONSENT IF THEY LIVE IN A STATE WITH A RIGHT OF PUBLICITY

The right of publicity is the right of an individual to control the commercial use of his or her name, image, likeness, or other similar aspects of the individual’s identity.  About half of the states in the U.S. recognize a right to publicity.  New York is one of them.

In New York, the right of publicity is codified by statute in New York Civil Rights Law Sections 50 and 51.  Subject to several exceptions, New York’s right of publicity laws prohibit the use of a person’s “name, portrait, picture or voice” for advertising purposes without the written consent of that person.  To bring a right of publicity claim in New York, the person depicted must be a resident of New York state.  In other words, a model who lives in California cannot succeed on a right of publicity claim under New York’s law.

In the click-to-buy image context, the photo has a commercial aspect because it is advertising a brand’s products and linked to the point of purchase.  Therefore, if you hire models who live in New York, you must obtain their written consent to use their image for advertising.

CONCLUSION

Traditionally, copyright disputes have been prevalent in fashion photography, but as click-to-buy images become more common, it is crucial for fashion brands and marketers to be mindful of their models’ trademark rights and rights of publicity.  By including editorial commentary alongside click-to-buy images, fashion marketers can seek protection under the First Amendment’s safe harbor for expressive works, thereby avoiding false endorsement claims.  Additionally, be aware where your models are residents, as that affects their right of publicity.  If your click-to-buy image features a model who is a resident of New York, for one example, obtaining their written consent is paramount to avoid potential right of publicity claims.  Should you have further questions, reach out to us and our team of fashion law attorneys can offer guidance.

Photo by Firmbee.com on Unsplash
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