Do you ever feel like you just can’t get enough of Anna Wintour’s scowl, Mark Jacob’s charm, or Karl Lagerfeld’s…….look? Online photos just aren’t enough sometimes, right? You need something more – like a personal bag featuring one of these three fashion giants. Lucky for you, there’s a website selling just such a thing. But before we send anyone off on a bag-buying spree, we had to wonder if there were any right of publicity issues related to using these three icons likenesses on items for sale.
In general, the right of publicity grants individuals the authority to control the commercial use of his or her own name and/or likeness. To hold someone liable for the unlawful use of a person’s name or likeness, it typically has to be show that an attribute protected by law (read: name, picture, voice, etc.) is being used for exploitative purposes without consent. As is typical with the law, it’s not actually that simple, though, because right of publicity laws vary from state to state.
As far as we can tell, this website in question does business out of Massachusetts, so we’ll start by looking at the law there. Massachusetts codifies its Right of Publicity law at Chapter 214, § 3A of the General Laws. To violate § 3A, a use of a person’s identity must be: within Massachusetts; for advertising or trade purposes; and without written consent.
Element one and two would likely be easily satisfied, leaving just the matter of consent. Call us crazy, but we find it hard to imagine that any of the aforementioned people would consent to their image being used to sell $30 pouches.
For variety’s sake, let’s say Anna Wintour brings suit. She’d probably do so in NY, where the right of publicity law is codified as part of a statute with two sections – Section 50 and Section 51. As would be typical, Wintour would likely reference both sections. Section 50 is much shorter than Section 51, basically just defining a right of publicity violation as a misdemeanor. Section 51, on the other hand, provides protection for a person’s name, portrait, picture, and voice. To constitute a violation of Section 51, a use of a person’s identity must be: within New York state; for advertising or trade purposes; and without written consent.
Once again, the only real element up for debate is consent. And, once again, we’re sticking to our conclusion that Wintour has probably not given permission.
So, is all hope lost for this website? Maybe not. There are a couple of defenses that might be useful. First, an oft-used defense against right of publicity claim is First Amendment protection in the use in question. This would apply if said use of someone’s name or likeness in a creative, entertaining, or artistic work is transformative – i.e. there are substantial “transformative” elements added to the use of a person’s likeness instead of just the mere depiction of a person. We can’t imagine this being all that helpful in this case, as the pouches up for sale simply put a person’s photo on a colored bag. There’s nothing extraordinarily transformative in that.
Secondly, there is also a defense available if the use of Lagerfeld’s image, for example, is only incidental to other purposes, and not intended to profit off of the person’s “reputation, prestige, or other value.” Could this defense fit here? Not likely. In fact, our guess is that the whole point of using these particular likenesses is, in fact, in order to profit of their reputation.
In all likelihood, this website is guilty of violating right of publicity laws. Whether or not Wintour, Jacobs, or Lagerfeld will pursue such a claim, let alone are aware of these bags, is another matter entirely.
JENNIFER WILLIAMS is a law school graduate who writes about fashion, the legal avenues available for protecting it, and the ways in which the laws are falling short. She is currently admitted to the NY State Bar. For more from Jennifer, follow her on Twitter.