The Value of Copyright and Branding for Social Media Influencers

A picture of Kim Kardashian promoting a new dress on social media could be worth up to $250,000. That’s the premise behind a new lawsuit she filed against “fast fashion” firm Misguided, which was using her name and a look-a-like model to promote their knock off dresses.  

Intellectual property rights play a crucial role in the new economy of social media influencers where stars like Kim Kardashian get paid big bucks to endorse a product. In 2019, Vogue Business estimated the influencer economy mushroomed to $1.7 billion, and includes everyone from Kim Kardashian down to teenagers and other social media users who boast large followings.

Intellectual property rights are the backbone behind the influencer economy where individuals must control their online reputation and image in order to communicate genuine endorsements, when advertising with their name, and in Kim’s case, make sure others are not using their name, image, or likeness without their permission. According to Kim’s attorney

Missguided does not merely replicate the looks of these celebrities as seen on red carpets, in paparazzi photos, and in social media posts. Missguided systematically uses the names and images of Kardashian and other celebrities to advertise and spark interest in its website and clothing. 

Fashion Nova, another fast fashion brand, has been accused of the same type of advertising practices. The Fashion Law reports:  

“While it initially appeared that Fashion Nova’s handiwork was … merely [a] demonstration of the lightning speed of modern-day fast fashion copying, the fact that Kim and Kylie’s images were being used to promote the copycat wares seems to suggest that there might be a little more going on. As Holmes put it, “Would Kris Jenner watch quietly if someone was using her daughters’ images to sell something, and they weren’t getting a cut?” That answer is almost certainly no — not only because Jenner is a world-class manager but because such unauthorized commercial uses of a star’s image likely runs  afoul of right of publicity law  and constitutes passing off in the UK,  as we saw in the Rihanna v. Topshop case.”  

According to Po Yi, a partner at Venable who specializes in marketing alliances, sports and entertainment marketing, digital media, and intellectual property, if companies wish to “… engage in social media banter with celebrities or even reference them, that could be a potential problem unless the client has a talent agreement in place with such celebrities.”  

Social media entrepreneurs should take note of this episode. Intellectual property rights play a key role in protecting one’s reputation, personal brand, and use of your image. If others get away with disparaging a carefully cultivated reputation it could end up costing you quite a few bucks.