In the age of Instagram, Tumblr and other social networking sites models like Cara Delevingne are the perfect representation of a new age where models have learned how to brand themselves. Now, more than ever, fashion models recognize that their image can be turned into a brand and lifestyle if managed correctly. This means that models should take great strides to protect the legal rights affixed to their image. The right of publicity is often available to protect models against unauthorized uses of their image and likeness.
In the United States, the right of publicity gives a person a legal right to protect his or her name, likeness and persona from unauthorized commercial use. An illustrative case of the protection afforded by the right of publicity is White v. Samsung. In the case, Vanna White, the TV personality on the wheel of fortune, accused Samsung of using her image incorrectly and causing her harm by using a robot parody of her in a line of commercials in the 90’s. A split court ultimately agreed with White, deciding she deserved protection from the parody because of the likelihood of confusion. However, the dissent argued that anytime you create a property right you limit creativity and can harm the collective conscious.
Courts are split on how far to expand an artist’s right to publicity, making the protection somewhat equivocal. Earlier this year, a UK court held that while Rihanna deserves protection in the goodwill her image garners, she could not assert protection from the use of her image on a t-shirt by a right of publicity. For that reason, stars have begun to seek the protections in their name and likeness afforded by trademark law. Now that keeping a manicured image is of vital importance to a model’s career, it is increasingly important that models actively police their trademark and monitor misuses of the image.
An illustrative example of this new personal branding is Cara Delevigne. Delevigne’s involvement as an editor, actress and a model contributes to her personal brand. Personal branding encompasses things like one’s right of publicity and trademark. This realization has led Delevingne, and a growing list of other stars, to file for trademark protection of their names. Filing for a trademark allows for protection against unauthorized use of their name or likeness under section 2(a) or 2(c) of the Lanham Act, the federal trademark statute, in the event that a person’s image is used to falsely endorse or advertise a product or service.
Violations of a celebrity’s trademark and right of publicity are most apparent in the fashion industry. For example, Brashy Couture produces a wide collection of clothing and features a stark white top with the word “Delevingne’d” printed on the front. Admittedly, in the age of Brian Lichtenberg’s “Homies/Hermes” parody t-shirts, Brashy Couture’s “Delevigne’d” top seems tame, but nonetheless touches on trademark and publicity rights issues. Brashy Couture’s use of her trademark would be considered infringing if a customer would likely be confused about Delevigne’s relationship/affiliation to Brashy Couture. The potential effect on Delevigne’s personal brand potentially makes Brashy Couture’s use of her name legally problematic.
Assuming that Delevigne did not give the company permission to use her name in this way, which is likely the case, Brashy Couture could face an uphill battle to prove that its shirt would not be an infringement of her trademark or a false endorsement. However, as a defense, the company could argue that the transformation of “Delevingne” into a verb is free speech and covered by the First Amendment. It could also assert the shirt is unlikely to confuse customers about Delevigne’s affiliation to Brashy Couture. While these are the best options available to the company, they are somewhat weak arguments.
All this to say, Brashy Couture, and other companies like it, should probably be prepared in the event Delevigne decides that this parody tee treads on her rights.
Chris Cooksey is a J.D. candidate, ’17, at the NYU School of Law.