Protecting your image in the Instagram era
Image rights have traditionally been the domain of celebrities. This is hardly a surprise—to have a public image and to be a celebrity are, to a large extent, one and the same thing.
But is this still the case? It seems worth making a distinction between celebrities such as royalty and film stars and the new generation of bloggers and “influencers”. The rapid emergence of influencers on platforms such as Instagram and YouTube was one of the last decade’s defining shifts in popular culture.
“There are more opportunities for self-promotion available to people now,” says Kelsey Farish, technology and IP solicitor at DAC Beachcroft. Part of Farish’s expertise is in digital and new media, which she has put to use advising influencers on their image rights.
“When I was a teenager, I knew of a few models, but you wouldn’t follow their every move on Instagram,” she says. The shift that’s taken place means more people than ever have a commercially valuable image or celebrity, and that puts IP front and centre.
“Image rights used to be a niche, something that only celebrities needed to worry about,” Farish says.
“But celebrities are just the bellwether for what trickles down to the rest of society.”
As Hilary Atherton, senior associate at Bird & Bird, explains: “We’ve mainly heard about image rights in the context of celebrities because the misuse of a celebrity’s image can have serious commercial, reputational and financial consequences for them. It’s in that context that the courts have typically been asked to intervene.”
Any cases that have made it to court have tended to involve high-profile celebrities such as Rihanna. But now, what it means to be a celebrity is changing.
With the rise of social media platforms, a “celebrity” may not need to have starred in a film or made a hit record to build up an audience of followers over whom they have influence.
Combine this with the explosion in online retail, and influencers’ endorsements have now become commercially valuable assets for brands.
What makes an influencer influential?
‘Influencer’ is something of a loaded term. Often, they are bloggers or people who began by expressing their interest in, say, fashion on their social media profiles. There’s a creative element to what many of them do that would be easy to write out of the conversation.
