For a consumer product company in today’s environment, brand exposure can be a key to success. One of the quickest ways for a young company to gain recognition is through social media and celebrity associations. Many companies have used Twitter, Instagram and their company website to post images of celebrities wearing their clothes or using their products. For example a fashion designer might post images of celebrities wearing her designs. If the celebrity hasn’t consented to this use, the designer can be exposed to Lanham Act claims of misappropriation and for infringement of the celebrity’s right of publicity. To minimize the risk of exposure, young designers and entrepreneurs should consider following these four tips:
- Blame Shift: Provide PR companies with a release to sign that allows you to use celebrity images wearing the garments or using the products received in a gifting suite.
- Image Collage: Do not prominently feature one celebrity, instead use many celebrity images to decrease the brand association with one particular celebrity. Keep all celebrity images the same size so that no one celebrity stands out.
- Newsworthy: Images in context of news stories have broader fair use protection than purely commercial uses. Use “as seen in” tag lines to increase the newsworthiness of your use.
- Less is More: Use just enough images to tell the story without highlighting a particular celebrity and drawing more attention than necessary to a particular celebrity.
Although the risk-free approach is to negotiate a deal with each celebrity and have them sign releases granting your company the right to feature them, we know for many companies this is a financial and practical impossibility. While proceeding at your own risk, you may want to consider the tips above.