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image: walkingcanucks
image: walkingcanucks

In the midst of the chaos of the Spring/Summer 2018 runway shows and Versace’s blow-out finale on Friday evening, it appears that for a while now, there has been something of an unspoken battle simmering between some of fashion’s biggest brands and influencers, and a handful of the street style photographers who have had a hand in helping to make them so famous. Unspoken until-very recently, that is.

You may have noticed that the hashtag #NoFreePhotos has been popping up in the caption of some of the fashion industry’s most esteemed street style photographers as of late. The hashtag is in direct response to what a group of partially anonymous photographers claim is an increasingly regular practice of fashion’s most in-demand and heavily-followed influencers. They are allegedly posting these copyright-protected street style photos to their own social media accounts and websites in order to fulfill their obligations to the brands and retailers that are paying them to drive traffic and induce sales (by wearing their garments and accessories). 

Influencers are a big business. WWD – which first covered the #NoFreePhotos phenomenon – reported last week that 4 out of 5 of Nordstrom’s mobile visits comes from referrals from influencers. But influencers are reaping “disproportionate” gains from their methods, according to the group of 30 or so street style photographers, who just this week decided to band together to fight such unauthorized uses of their imagery.

Yes, according to an unofficial new “union” of photographers their fashion week photos (along with those from other events) are for editorial purposes only and not to be used as a way for influencers, themselves, to conduct business.

Based exclusively on hashtag usage, the group appears to include: The Style Stalker’s Szymon Brzóska, Evgen Kovalenko, Jeremy Kang, Kenta Iriguchi, Le21eme’s Adam Katz Sinding, Yu Yang of Before Sunrise, Leila Emine Lundsten, Alexandra Chalaud, Carola de Armas, LeFrenchyStyle’s Jonathan Paciullo, Daniel Kim of Walking Canucks, and Ivan Marianelli, among others. 

According to a release sent out by the group on Friday, if influencers continue to use their photos without licensing them, the photographers – a handful of whom recently added a convenient “License My Work” link in their Instagram bios – have said that they will begin sending cease and desist letters to influencers (and maybe even brands) alerting them to the alleged instances of copyright infringement.

“In the case that the brand/influencer/blogger does not respond and rectify this issue,” the release reads, “the group of photographers will reply to the post on the social channel with a simple comment of #NoFreePhotos to raise attention to the issue,” a form of social shaming, if you will.

Also potentially on the table if the influencers do not act appropriately: Copyright infringement lawsuits, of course, as regardless of the individual subject(s) of a photo, the photographer is the one who has copyright protection in the photo (unless of course he/she assigns that right to another party, such as a magazine).

What About the Law?

The #NoFreePhotos movement is not intended to be an act of “malice,” according the release, but is meant to remove this group of photographers from their role of “a passive entity in the equation of this industry.” It is also being used to even the playing field of disproportion between street style photographers and the rest of the industry, including influencers.

It is, not surprisingly, being met with a bit of pushback. A number of influencers – speaking off the record – have claimed that it is, in actuality, the photographers that might be the ones in the wrong here.

Yes, there is a chance that street style photographers are potentially running afoul of the law when it comes to influencers’ rights of publicity – or their rights to control commercial (and oftentimes very lucrative) uses of their images. In theory, influencers’ rights stand to be violated when, for example, photos of them are captured and used – without their consent – either for big name publications’ street style coverage, for use of retailers’ websites (TheRealReal was recently sued for this exact thing) or for the photographers’ own websites.

Influencer and writer BryanBoy told TFL: “These photographers make a livelihood of shooting people on the street at events. They sell their images to print publications, media AND retailer websites, so on and so forth. They also get hired by brands to shoot people wearing a said brand at certain events.”  

As noted by editor and journalist Alexander Fury on Twitter, “Lots of shows have disclaimers saying we assent to our images being broadcast; but that’s only inside the venue.” With that in mind, once fashion industry figures hit the pavement, all bets are off, as it simply is not common industry practice in the fashion industry to make use of consent forms in advance of photographing runway show-goers.

So, what rights does that leave the photographer and the photographed/influencer with? Well, in New York (U.S. right of publicity law varies by state), the commercial use of another person’s name, portrait, picture, and voice for advertising or trade purposes without that person’s consent is illegal. 

Street style photographers have some significant leeway, however, as the First Amendment exception of “newsworthiness” enables them to dodge liability if the photographer can be said to be reporting or commenting on matters of public interest. Courts typically interpret “newsworthiness” very broadly. 

The laws in Europe, which are notoriously much more protective of individuals’ privacy rights, are another matter. France, for instance, is known for boasting some of the most stringent laws in this arena, which is why the Duchess of Cambridge prevailed in her lawsuit against French publication Closer earlier this month.

Despite the magazine’s attempts to justify publication of the photos of the Duchess sunbathing topless on vacation in France based on “public interest” grounds (saying they disproved rumors circulating at the time that Kate might be anorexic), the French court sided with the royal. It ordered the magazine to pay a fine of 45,000 euros ($53,500) and two photographers from a Paris agency to pay smaller fines after also being convicted under French privacy laws. 

Nonetheless, if faced with a lawsuit in France – home of the month’s most esteemed fashion week and no shortage of street style photos – photographers could certainly look to France’s own exception for “newsworthiness,” and courts would be left to balance the potential harm caused to the photographed individual with the societal interest in observing and promoting free speech.

According to the photographer responsible for drafting the #NoFreePhotos release – who spoke exclusively to TFL on Saturday anonymously in order to preserve the collective unity of the group – the photographers at issue are not necessarily worried about privacy-related litigation. This photographer said he cannot recall anyone over the course of his career citing a right of privacy violation in connection with a street style photo.

In fact, more often than not, he said, influencers are happy to have their photos taken. Most influencers dress the way they do, knowing that street style photographers will shoot them because their look “is cool.” Then, this photographer says, “they will have all these photos without having to hire and pay a photographer.”

Other influencers have even taken to tipping off street style photographers of their schedules/whereabouts in an attempt to ensure that their photos are, in fact, taken during any of the respective fashion weeks.

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A Complex Balance

This is not a clear cut issue, but one that is derived from a complex and potentially symbiotic relationship, it seems. Street style photographers stand to profit from their photos of influencers (they can sell them to any number of outlets, from magazines to e-commerce sites and/or post them on their own social media accounts to build a greater following). Simultaneously, there is an argument that it is in large part because of the work of street style photographers that influencers have become so relevant and powerful.

The group’s release, itself, states: “Without the work of this group of photographers and their coverage of these brands/influencers/bloggers in their social media channels, the brands/influencers/bloggers will be less visible and less represented in the industry.”

According to the photographer I spoke to, “It was people like Bill Cunningham, [The Sartorialist’s] Scott [Schuman], Tommy [Ton], and Phil [Oh], who made these people.” Nonetheless, he says, “We are part of the next wave and we are continuing to sustain [the visibility of these influencers], and put their photos out on more media channels in front of more people.”

BryanBoy acknowledges the power of the street style photographer, saying: “Of course they have a hand in propelling anyone to a certain level.” For example? The Russian Fashion Pack, as the New York Times coined them in 2012. “At one point, they were all over fashion like a rash. And street style photographers elevated their profile from nowhere. Many of them used to crash the shows or simply posed outside show venues without being invited – until their profiles were elevated and the brands legitimized them.”

At the same time, though, BryanBoy, reasons: “Don’t forget that most of the people who go to the shows and are invited by brands have already proven themselves. They already have a purpose (editor, buyer, etc.) or they already have a large following. Otherwise, why would brands invite them at the shows in the first place.”

In light of this delicate balance, the goal of the group of photographers in connection with the #NoFreePhotos initiative “is for us to raise awareness about these uses of our photos. There is no malice. We don’t dislike anyone. We want to keeping shooting everyone. We will not stop shooting these people, we just want those people who will now no longer be able to use the photos, to go to the brands and allocate resources for this purpose.”

In short: “We want to be added to the equation, not just be a passive entity in lieu of influencers or brands hiring photographers.”

Why doesn’t he and the larger collective of photographers merely stop taking photos of the individuals who are making unauthorized uses of their photos in order to remedy the situation at hand, you ask? There is simply more to it than that. “We are photographers, journalists. It is our job to come here and provide an unbiased view of the current state of the industry. If I was to not shoot people I don’t like [that are important or relevant in the industry], then it wouldn’t be honest anymore.” 

One place where influencers and street style photographers can almost certainly find some common ground? Fashion’s penchant for so-called freebies. “The work for free culture needs to be stopped dead in its tracks. It’s abusive and demoralizing,” says BryanBoy. 

“You can’t pay your rent with a gifted Fendi bag,” the photographer agreed. Your move, fashion brands.