Welcome to the winter edition of our eBulletin, which focusses on areas of advice that we give to our talent clients in the Retail & Fashion space. With that in mind, we look at unauthorised use of image rights, morals clauses and the potential legal pitfalls of live-streaming.

Unauthorised use of image rights

A recent essay written by model and actress Emily Ratajkowski has reignited the debate on unauthorised use of image rights. Ratajkowski discusses the economic and emotional consequences of losing control of her own image and is one of a growing list of celebrities who are eager to prevent third parties using their image without licence.

Image rights are an individual’s proprietary right in their personality, and include the right to prevent unauthorised use of their name, physical or style characteristics, signatures, or slogans. This concept comes from the idea that each person should be able to control how ‘persona’ is commercialised.

Under English law, however, there is no stand alone right of personality, or ‘image right’, by which a model or celebrity can protect their likeness. Protection is only available on a fragmentary basis and there are a number of points to be aware of in respect of the different options.

Here we examine the legal position as it currently stands in the UK.

If you would like advice on any of these issues, please speak to one of our experts here.

Morals clauses: a two-way street?

For decades, brands have expected provisions in their contracts with talent which give them the right to terminate if the talent acts in a way that may tarnish the reputation of the brand. These provisions are known as ‘morals or morality clauses’ and often include prohibitions against drug taking, criminal activity and making offensive statements.

The balance, however, has shifted in recent years, especially in light of significant cultural movements such as Me Too, Pay Up, Black Lives Matter and the wider ‘cancel culture.’ High profile talent have developed a better understanding of the value they bring to the brand and therefore the influence they have on the brands that they partner with. Talent increasingly look to negotiate contractual protections which allow them the right to help shape a brand’s marketing campaign, as well as to pull the plug on the relationship if the brand is seen to behave in a way which is unacceptable to the talent’s fanbase or wider audience.

These developments go hand-in-hand with the growing reach of social media and also the commercial maturity of a generation that are driven by their social conscience when it comes to the brands they follow and the products they purchase. Talent across all sectors are now looking for, and expecting, a ‘two-way-street’ when it comes to morals clauses, often seeking and obtaining the right to disassociate themselves from a brand that has stepped out of line or is no longer seen to support the right causes.

With brands increasingly looking for talent who will bring the brand closer to the (often huge) following that the talent has amassed on social media, these provisions and how they are structured has been brought more into focus and provide a key mechanic for both the brand and the talent to protect and enhance their reputations.

If you would like advice in this area, please contact a member of our Models and Influencers team here.

Retail via live streaming: potential legal pitfalls

Live streaming is now a very popular form of retailing, assisted no doubt by the stay-at-home restrictions caused by the ongoing pandemic.

Brands are increasingly marketing themselves, and their products, via TikTok, Amazon Live and other online services which can be used to showcase products via live online videos. The content of the live videos is often similar to that on television shopping channels. The live shows give viewers the chance to access special promotions during the show and viewers can interact directly with the content, asking questions of the host of the show. The host is often an influencer, celebrity or brand representative. The shopping experience is transformed.

But before embarking on selling products this way, it is important to anticipate and prepare for the potential legal issues that live streaming gives rise to, to ensure that everything goes to plan.

You can read the article in full here.

Legal 500 ranking

We’re delighted to have been recognised in the Legal 500 UK 2021 rankings.

We were cited for acting for a range of retail and fashion clients across a variety of mandates including brand management and IP issues, commercial contracts, corporate transactions, real estate issues, employment matters, litigation, technology and data mandates, and reputation management work.

We were also recognised for our sustainability work and social media projects.

Clients’ commented on our “very friendly and approachable” manner as well as our “kind, understanding and helpful” demeanour.

The full rankings can be viewed here.

Responsible Trust for Models

Harbottle & Lewis provide ongoing support to the Responsible Trust for Models, an independent organisation working with all parts of the fashion industry to make modelling safer and more sustainable.

Models and influencers can find out more about the services we provide here.

Delevingne Della Vite prosecco

We are proud to announce that we have acted for the Delevingne sisters on the launch of their brand new prosecco, Della Vite, which is available to buy in Selfridges, London.

You can read more about the Della Vite prosecco here.