social media – The Fashion Industry Law Blog

What do the Special Prosecutor and the New York State Attorney General have in common? If you answered fake social media accounts and social media bots inflating followers, likes, tweets and retweets, you would be correct.

At the end of January, 2019, Attorney General Letitia James announced she had reached a settlement with Devumi LLC, which she described as “the first in the country” to find that selling fake followers and likes on social media is illegal deception and using stolen identities from real people is illegal impersonation. The Attorney General’s investigation began under James’ predecessor in response to an article posted online by The New York Times on January 27, 2018, entitled “The Follower Factory”. That article is the best source to understand the underlying facts.

Devumi operated a business through which individuals who wished to appear more popular and influential could purchase views on YouTube, plays on SoundCloud, endorsements on LinkedIn, as well as followers, likes and retweets on Twitter and other social media platforms. According to the Times, Devumi’s customers included the model Kathy Ireland, the former pro-football player Ray Lewis and even the Treasury Secretary’s wife. Engagement with the platforms was effected by using computer operated fake accounts, generally referred to as “bots”. In some instances, the social media personas of real people were “cloned” to create multiple accounts in multiple languages to create thousands of other accounts used to promote products or services, so-called “sock puppet” accounts. According to the Times, Devumi supplied customers with over 200 million followers, using 3.5 million accounts.

Reaction to the article was swift and resulted in Devumi ceasing operations when the publicity “caused a major decline in its sales”, according to the Attorney General. But Devumi is hardly the only entity or individual conducting similar questionable operations. A simple search for “Buy Followers” on Google will lead to links for many offering followers or likes for sale. The search is so common that Google has pre-programmed questions and answers related to the search as well as related searches targeted to specific social media platforms.

Fraud and deception related to influence on social media platforms are not limited to purchasing followers and likes. According to an article posed on-line by The Atlantic in December 2018, wanna-be professional “influencers” are also feigning sponsorship deals on-line to convince brands of their credibility as influencers—what the article aptly calls “faking it until you make it”.

While many athletes and performers have entered into lucrative endorsement deals with brands for many years, the influence they sell has been earned through a record of actual accomplishment in their professional fields. Roger Federer, for example, can endorse coffee machines and watches because he justly has earned fame based on long years of actual accomplishment playing professional tennis. The same cannot necessarily be said of professional “influencers” whose only claim to fame is an Instagram following that may or may not have been manufactured. So, when it comes to social media “influencers”, the watch word should be: let the buyer beware.

Credit: Helene M. Freeman

These days anyone with a cell phone is a photographer and the internet is flooded with photos of celebrities that go “viral” on social media. A photograph of a star wearing your garment, carrying your accessory or holding your shopping bag can be of tremendous value to your brand. Indeed, brands shower celebrities with gift items for the promotional value in their use. And contracts to promote brands are lucrative for the celebrities and those who serve as matchmakers. So it is very tempting to copy photos found on the internet to your website, Facebook page or ad. But if you do, you may run afoul of what has been variously described as the right of privacy or the right of publicity.

There is no uniform national law which protects an individual from unwanted exploitation of their name or image. Each state, however, has afforded protection, either by statute or as a matter of judge made “common law”, and sometimes by both. New York has long prohibited the use of the name or likeness of every living person—celebrity or not—for purposes of “advertising or trade”. While the New York statute offers no protection against the use of the image of a deceased person, even if a celebrity, other states do protect celebrities against commercialization for extended periods after death.

Use of a name or likeness for non-commercial purposes, however, is not prohibited. Because of the constitutional guarantee of free speech, newspapers, magazines and even TMZ are free to report the comings and goings of stars, and also to publish that embarrassing photo of you at a Giants game, with impunity. Your daughter can tweet her cell phone photo of Britney Spears walking on the street without make-up or post-it to Facebook, and like-minded celebrity-obsessed fans then can circulate it freely. These uses are not considered uses for purposes of advertising or trade and so are protected free speech.

But what of a business seeking to use a celebrity image on its website, Facebook page or other social media channels? Is this protected free speech, or is it instead a violation of the right of privacy or publicity? On the one hand, the use of the image in a paid advertisement is clearly a violation of the right of privacy and publicity, including under the New York statute. And use of the image on merchandise, even if given away for promotional purposes, is also a clear violation which can lead to punitive damages and not merely compensatory damages.

Closer questions are presented by posting a photo on your own website. A website is a business promotional tool and can be seen as an advertising use. But websites can also report news and events relating to the business, and truthfully communicating newsworthy events is behavior protected by the First Amendment. Where celebrities are seen and what they are wearing is considered legitimate subjects of public interest meriting First Amendment protection. Does this mean that if your daughter can tweet her photo of Britney Spears, you can retweet it and point out she’s wearing the hat and scarf you sell? On this question the judicial authorities have not yet spoken. Last year Katherine Heigl sued Duane Reade under the New York statute, for tweeting a photograph of her carrying a Duane Reade shopping bag. The litigation was resolved privately without a court addressing the legal issue. While it is sorely tempting to opine that this sort of communication of truthful facts should not be actionable, the burden and expense of defending against such a claim and the damages to which you could be exposed counsel caution.

Credit: Helene M. Freeman

See previous posts:

“Can I Use the Photographs? (Part 2)“
“Can I Use the Photographs? (Part 1)“

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For a recent article by New York Times reporters Sydney Ember and Rachel Abrams on brands and their use, sometimes without permission, of consumers’ own photographs posted on social media showcasing branded items, click here.