This case is a great reminder for brands and influencers about usage rights and the importance of understanding creator agreements.
A model and creator is suing a beauty brand she partnered with in federal court for false endorsement and misappropriation of likeness.
Under the influencer agreement, the creator agreed to post 1 photo and 1 video to Instagram and granted the brand rights to that content only. Later, she discovered that the brand used another image (shown above) taken from her IG account and used that image to promote that brand in stores across the U.S.
Because she did not grant the brand usage rights to that image or her likeness more broadly, she sent a demand letter to the brand seeking $40,000 in additional compensation.
When the brand ignored the demand letter (never a good idea), she filed this lawsuit.
The brand has until August 22 to respond, and I’ll track this one as it progresses.
The issues presented here come up over and over again.
Brands often mistakenly assume that because they engaged a creator for one campaign, they can use that creator’s images and likeness however they want.
That’s not true, unless the agreement covers such usages.
Here are just a few of the issues that you want to consider as you (preferably through your legal team) draft your agreement:
-Who owns the rights to the content?
-Where can the content be used, and for how long?
-How is the influencer being paid, and when?
-What publicity rights are being transferred?
-Is there an exclusivity clause, and is everyone okay with its scope?
-Does the brand get to approve the content before it goes live?
-Where will you resolve disputes, and what law will apply?
-How do you terminate the agreement, and what happens when you do?
Thinking through all of these issues in advance will save you time and money down the road.
The Texas Attorney General is suing an influencer who sold online fitness and nutrition plans.
The lawsuit says she sold the plans “with the promise of personalized nutritional guidance and individualized fitness coaching.”
The price of the plans ranged from $92 for a one-week program, to $300 for a 3-month regimen.
But the AG says “the online nutrition and fitness plans delivered to consumers were not individualized.”
They also alleged she “failed to provide the promised coaching and check-ins, … largely ignored consumer complaints, or offered only partial refunds.”
Instead, customers complained that the check-ins and feedback they received were “generic and non-substantive, e.g., ‘You’re killing it!’”
The lawsuit also alleges that she charged customers a shipping fee, even though the plans were emailed.
The customers joined the influencer’s Facebook group, where they were able to compare plans and, according to the lawsuit, realize that they received the same “individualized” plans despite having different goals and starting metrics.
So why post about this?
It’s an important reminder to pay attention to the claims you make about the products and services you offer.
There’s nothing inherently unlawful about selling off-the-shelf template nutrition or workout plans.
And it may seem obvious that if you call something “personalized,” then you need to tailor it to each person.
But it’s also common for brands and influencers to include a word or two in their ad copy that conveys a certain meaning—intentional or not—that a significant portion of their audience will rely on when making a purchase.
Those one or two words, if they don’t accurately describe the product or service being sold, can make the difference between a successful business and a lawsuit from the government or a class action from customers.
So, it’s a good idea to review all of your ad copy, especially if you are selling a plan or a course, to make sure that you aren’t overpromising or phrasing things in a way that might carry a meaning you didn’t intend.
A music NFT project called Opulous featured Lil Yachty as “collaborating” on their NFT drops.
But he says he never agreed to be part of the project.
So, Yachty is suing Opulous, its music distribution partner, and that partner’s founder individually.
He’s asserting claims in California federal court for trademark infringement, false endorsement, and violations of his publicity rights.
According to the lawsuit, Yachty had intro conversations with the Opulous team who pitched their “music copyright-backed NFTs,” which allow people to buy fractional licenses to various music recordings and earn streaming royalties.
Ultimately, Yachty passed on the invitation.
But Opulous issued a press release and advertising campaign stating it was “kicking things off” with drops “led by world-famous artists including Lil Yachty.”
Opulous also used Yachty’s image in tweets and LinkedIn posts promoting the project.
This is not the first NFT project that I have read about where a musician’s likeness has been used allegedly without the artist’s permission or involvement.
While the context is new—NFTs as we currently know them are still in their relative infancy—the issues presented here are not.
It’s a mistake to think that the NFT or metaverse spaces are “unregulated,” which is something I hear repeated frequently.
IP rights, including publicity rights, exist everywhere.
And Yachty’s allegations present classic, straightforward claims for trademark and publicity rights violations.
While there are many novel legal issues that come with new technologies, it’s important to understand where the risks lie, old and new.