As in seasons past, the Spring/Summer 2017 fashion month collections promise a lot of noteworthy new collections, and an array of new runway show formats, as well as changes to the runway-to-retail models. Another staple we can count on, as with all collections, is borrowing. Not just designers borrowing from other designers or bloggers borrowing clothes, but also borrowing content. Reading a great review of a certain collection and subsequently posting it in its entirety on your own site for content, as an example; or using another’s photographs to add context to a comment on Demna Gvaslia’s latest collection for Balenciaga.
While the tone here may seem like we’re opposed to such borrowing of content, we aren’t, as long as certain guidelines are followed. Namely, giving credit to the original creator of the content. As we’ve said more times than we care to count, the laws protecting designs are, at best, completely insufficient. But it’s not just designs that need protecting. It’s also the articles, the journalists, (occasionally) the bloggers, and the photographers who have a stake in each cycle of new designs because words and photos now shape how many people internalize a collection.
With said content becoming such an important role in the life of a collection, it’s equally important to be aware of what laws apply to the creation and reuse of the content, whether the laws apply to bloggers or just professional journalists, and also whether the laws are state specific or not.
Let’s start with shield laws. These are not laws that are likely to apply very often in the realm of fashion journalism or blogging, but they are nonetheless important tools to have. Shield laws offer journalists the privilege to protect sources of confidential information obtained in their professional capacity. Although there is no federal shield law protecting journalists, most states have enacted these laws based on the First Amendment guarantee of Freedom of the Press. These laws currently vary from state to state in their level of protection.
New York’s shield law, for example, offers absolute protection for information obtained in confidence, which means that a court cannot order you to reveal the information. Other states only offer a qualified privilege, meaning a court could compel you to reveal information. (For specifics on your state’s shield law, check here.)
The portion of shield law protection that is still developing, and therefore hard to compress into a succinct overview, is who gets the protection. Professional journalists will always be covered. What’s still unclear is whether bloggers or freelancers are covered. And, again, this varies from state to state.
Now, on to a more relevant (for our purposes) area of law: Endorsements. We’ve touched on this subject before and provided ample information on what the law requires. So, it’s enough here to say that, in general, bloggers and journalists alike are required by the FTC to disclose their relationship to a company in a “clear and conspicuous” manner when they endorse a product. And just to be safe, when you start getting free products, likely in exchange for your commentary, it’s best to disclose that, too.
Defamation involves a statement of fact that is written (libel) or spoken (slander) and that tends to harm another’s reputation. State law largely governs defamation, much like shield laws. But generally, a person bringing a defamation lawsuit must prove: (1) that the statement was published, meaning communicated in print or uttered to at least one other person; (2) the statement is about the person bringing the suit; (3) the statement tends to harm the plaintiff’s reputation; (4) the statement is false; and (5) the statement was published with some level of fault. In most cases, when the subject of the alleged defamatory content is a private citizen, only negligence must be shown. But, if, for example, we’re talking about a designer who would be considered a public figure, actual malice is required.
Several defenses to a defamation claim are available. The relevant ones here are truth, opinion and fair comment, and statute of limitations. Truth is an absolute defense to a defamation lawsuit. And the law does not require 100% accuracy, just that what you published or said is substantially true.
The right to publish your opinion or a fair comment is protected by the First Amendment. This right means you can publish so-called “pure opinions” – like that a certain designer is inept – without fear, so long as there are no underlying false facts implied by the opinion. Courts typically look at whether a reasonable person would interpret a statement as opinion or fact.
And that brings us to a statue of limitations defense. Because this varies from state to state, we’ll give you New York’s as an example. In New York, a defamation claim must be brought within one year from the time the defamatory content was published. New York has adopted the “single publication rule”, which means that the one-year statute of limitations can begin anew with each new substantial republication. Example: First publication in a book, second publication on the Internet. This second publication would restart the statute of limitations period.
Now you might be tempted to think that you can republish defamatory statements made by another without any recourse, but you’d be incorrect. So, quoting another person who made a defamatory statement in no way lends you immunity.
And finally, we arrive at copyright law, which protects original works of authorship, such as your words and/or photographs. The first thing worth knowing is that copyright law is federal law, thus there is no need to worry about certain aspects varying based on what state you are in. Obtaining a copyright in your work simply requires that the work be fixed in a tangible means of expression and that it be original (a very easy requirement to meet). There is no requirement that a person file for copyright protection in order to have it. And once you have copyright protection in your work, you are given the right to publish, reproduce, distribute, perform, or display that work.
Two major caveats to copyright protection: First, it does not protect ideas. What is protected is the expression of certain ideas, but not the ideas themselves. So, if you write a brilliant commentary on John Galliano, his downfall, and foreshadow his magnificent return, that essay, as a whole, is protected. The ideas are not. No one else should reprint your essay without your permission. What someone else may do is comment on it, criticize it, and expand on it.
Second, copyright does not protect facts. Being the first to report who would take the helm at Balenciaga after Nicolas Ghesquière, while noteworthy, would not merit copyright protection. No one owns this information because it is a fact, and anyone can repeat it. (Though ethically, if you were the first to report the information, others should credit you.)
A popular defense to copyright infringement is fair use. This allows someone to use a copyrighted work when that use contributes to public discourse or when a new work is created. While it’s nearly impossible to predict how courts will rule on the issue, there are four factors consistently considered when deciding whether or not there is fair use: (1) the purpose and character of the use; (2) the nature of the work; (3) the amount and substantiality of the portion used; and (4) the effect of the use on the potential market for the copyrighted work.
To be safe, you should strive for a work that transforms the original, so that it does not serve as a replacement for the original.
A final topic dealing with copyright protection, and one that is particularly relevant for online journalism and blogging, is linking to other works. For the most part, courts have found that linking to another website does not create copyright infringement. You can, however, be held liable for contributory copyright infringement if you knowingly link to works that infringe on another’s copyright.
So there you have it. The tools you need to practice legal and ethical journalism or blogging, whatever your case may be, when opining on the upcoming collections and in the future.