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Legal and Accounting

Must Know Legal Facts for Every Fashion Brand Using Social Media

fashion law must know

Here’s a legal fact for you: Fashion designers need to understand the law and how it impacts your businesses. Listen, I know this is dry to you. I know you don’t want to have to think about trademarks, and rights of publicity, and endorsements, and copyrights. I know you have plenty of other stuff to deal with in your business. But just because you don’t feel like knowing this stuff, doesn’t mean that you don’t have to.

This was the topic of discussion at a recent seminar that took place at TexworldUSA and ApparelSourcing in NYC this week. 

The discussion, lead by the ladies behind Fashion Law Studio, focused on the legal issues around your business’s social media efforts.  Kind of a big deal, wouldn’t you say? Considering that you most likely lean pretty heavily on social media as your main marketing tool.

The discussion touched on Rights of Publicity, Copyrights, and Endorsement, and I have to tell you, I learned a lot!

Let’s start by saying that I’m not delusional. I know that you aren’t interested in a full on fashion law education, but what’s great about what was shared is that it’s the basics, it’s the stuff that you need to know in order to protect yourself as you work hard to leverage social media to grow you business.

Oh and just one other thing before I jump in here, this isn’t legal advice. There’s not attorney client privilege here. This is simply general information being shared and should not be taken as anything more. OK? Great.

So here’s what was discussed.

Celebrity (and non-celebrity) Photos Being Used on Social Media to Promote Your Brand

When you use a photo to promote your business there are three components that you need to think about.

  • The person in the photo (Right of Publicity)
  • The photo itself and who owns it (Copyright)
  • The message (Endorsement)

It’s a very common habit for brand owners to try to align their brands with a celebrity, an influencer, or even a “regular” person who really personifies their brand. But if you don’t have permission to do so, you’re opening yourself up to a whole lot of potential trouble.

Here are some ways you can infringe on someone’s right of publicity:

  • Re-gramming a person’s selfie or photo that they’re in on your business’s Instagram without permission
  • Commenting on a person’s post with words that imply that this person is or would be an awesome brand ambassador.
  • Taking someone’s photo and making it your own. (this happens ALL THE TIME on Instagram)
  • Naming your product with a celebrity’s name. i.e. the “Reese Ring” or the “Angelina Clutch”. When a person is well known and the general public would associate your product with that celebrity after reading your product name, then you are risking legal action. (the Reese Ring is a real instance and Reese won.)
  • Not getting permission from the models in your photo shoots. The model in your photo shoots needs to have given permission too. Usually the photographer has a model release form that the model signs, but make sure of that. The model in that photo has rights of publicity!

Here are some ways you can infringe on copyright:

  • Pulling images from Google to use in your blog or other social media platforms. You have absolutely no idea who owns the rights to those photos and if you’re caught, it could be a mess. Independent Fashion Bloggers recently published an article about how someone was sewed for $7,500 for use of a photo pulled from Google. Instead, use your own photos, photos in the public domain, or stock photos in all your promotional content.
  • Not getting full usage rights from your photographer and model. When you have a photo shoot, you don’t automatically own the rights to those pictures. Your photographer owns those picture and he or she gives you the rights to use them (in writing!). If you want them for print, social, and editorial, you have to make sure that you have a contract saying so.

Here are some ways you can infringe on endorsement:

  • Working with brand ambassadors and not disclosing that you gave them product or paid them in exchange for their posts (social and blog). Both you and the ambassador must be truthful and disclose payment.
  • Running contests or giveaways in exchange for “likes” and “shares” and not making it clear that the likes and shares were obtained in exchange for something free.
  • Basically, if the act influences the way consumers view your brand or influences their purchasing practices, you have to disclose it.

There were some really interesting things shared in this discussion. I for one had no idea that commenting on people’s posts with a promotional message about your brand violates the rights to publicity!  I see this happen with designers all the time. I know it’s done innocently, with no malice behind it. But that really doesn’t matter.

That’s what makes it so upsetting — when you don’t know you’re doing something wrong, but simply thought you were hustling to build your fashion brand.

Hence the reason why seminars like this are so damn important. Protect yourselves, designers!

On a side note, one topic that we didn’t get to during the seminar was hashtags. There was so much discussion and great info being shared that we ran out of time. So Nima and Katharyn of Fashion Law Studio will be contributing an article on this important topic later next month. Keep a look out for that.

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You’ve heard us talk about Texworld USA many times before, they are one of our sponsors because we really believe in the importance of attending shows like this as a means of learning, connecting, and building a stronger business. That’s why we sat in on this seminar and are super excited to share with you what we learned. 

Nicole is the founder of StartUp FASHION, an online community and support system for independent designers around the world. She’s a traveler, a weaver, and a foodie. A deep love for the craft of fashion pared with an adamant belief that success is defined by the individual, led her to found StartUp FASHION were she helps independent designers and makers screw the traditional fashion business rules, create their own paths, and build businesses they truly love. More than anything else, she’s in the business of encouragement and works every day to remind makers and designers that they have something special to offer the world and that they can, in fact, do this thing!

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