A Valuable Lesson from the Swedishandstylish Saga: Getting Consent Is The Key
Today, we look to the past to glean a valuable lesson on how not to use images of others on social media. Last year, Dior was sued by a mega influencer for using her Instagram photos without permission. The influencer, @swedishandstylish, is known for sharing photos of her luxury handbags (the likes of Chanel, Dior and Hermès) against scenic backdrops. Swedishandstylish consistently shied away from revealing her face on the feed. For example, she would face away from the camera or not appear at all. It is against this background that Swedishandstylish moved to file a complaint with the United States District Court for the Southern District of New York, claiming that, unbeknownst to her, Dior had used two of her Instagram photos for the brand's look book. Such visibly commercial use, the complaint alleges, amounts to copyright infringement. Swedishandstylish emphatically notes that Dior could well have contacted her to license the photos in dispute that are "wholly original".
The lesson here is that luxury brands should take a cautious approach when it comes to using images that are publicly displayed on social media, especially in commercial contexts. These days, brands wish to share on their feeds nice-looking customer-curated Instagram contents featuring their products to build brand loyalty and add a measure of authenticity. So what steps can brands take to ensure that they are not appropriating others' photos in an unlawful manner? Normally, a brand would send a Direct Message to obtain permission to use. So it all boils down to getting consent. However, would obtaining consent a panacea to all legal troubles? Probably not. The consent here would better be an informed one. You need to explain in plain language what the potential use might entail. Do not use legal jargon. Use the language that is comprehensible to those who are not trained in law. Some people definitely don't want their photos to appear on other media, such as look books in this case. Therefore, the consent would benefit from clearly communicating the extent of the use. The guiding principle, I believe, is to be forthright and honest with the user from whom you need to clear copyright.
Circling back to the lawsuit, it came to an abrupt end when Swedishandstylish voluntarily dismissed the case one day before Dior's answer was due. (Side note: An answer is what the defendant submits in response to the plaintiff's complaint. The defendant is telling the court which parts of the complaint the defendant affirms or denies.) Based on this development, it would be safe to presume that the parties reached a settlement of some sort. Here, the fact that Swedishandstylish was a huge fan of Dior does not mean that the brand can use the photos for commercial exploitation. So let's just go back to the ABC of copyright and licensing. Never assume that images on social media are freebies.
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