Noteworthy interview on new social media advertising regulations

Noteworthy interview on new social media advertising regulations

Earlier this autumn, several celebrities were investigated by UK regulators for not labelling social media posts as “advertisements”. Given that so-called influencers can potentially sway the shopping habits of millions, the Advertising Standards Association published An Influencer’s Guide to making clear that ads are ads, to help celebs and bloggers avoid misleading consumers. But what does this guide really mean in practical terms? To better understand the world of influencers and online advertising, I’ve interviewed Nicole Ocran-Hegarty: journalist, style blogger, and Influencer Strategy Manager at Disney.

noteworth

Kelsey:  Nicole, you and I first met online about 15 years ago on the blogging platform Livejournal. Since then, we both – coincidentally – moved from the United States to London, where we finally met in real life!

Can you tell me a bit about your professional background in journalism, and what inspired you to begin your personal fashion blog, The Noteworthy?

Nicole:  I honestly cannot get over how the Internet brings people together. I remember typing away and commenting on your LiveJournal and messaging you from my childhood bedroom in Annandale, Virginia. You were constantly here there and everywhere and I was so jealous of that. Anyway, I’m already off topic!

My career in journalism started when I was 19 or 20 and a student at George Mason University. I had just started editing the Style pages of my university’s student newspaper, the Fourth Estate. It was there that I really honed my craft, my love of writing, editing of interviewing. In my junior year I became editor-in-chief of the paper: I lived and breathed the paper, and didn’t want to do anything else but be in the Student Media office. I also was interning at the The Washington Post’s free daily paper, Express.

By the time I graduated from George Mason, I started another internship at the non-profit Student Press Law Center, fighting for First Amendment rights for students across America. At the same time I applied to City University in London, and went with their journalism masters programme! It was the best decision I ever made.

In London, I got my first job in entertainment journalism at Entertainment News, and I’ve since written for the Metro, The Sun and Refinery29 UK! I decided to start The Noteworthy while I working in a job where I wasn’t really able to express myself through personal writing. When I got made redundant, The Noteworthy became a real outlet for me, as I was able to showcase my love of fashion, where I hadn’t been able to before.

nwty2
In addition to writing about style, fashion and beauty, Nicole routinely explores topics about feminism, politics, Black women, and pop and celebrity culture. Recently, she explained why she won’t shop at Topshop anymore in light of the Philip Green sexual harassment scandal.

Under the new Influencer’s Guide, bloggers only need to disclose something as an advert if: (1) they’ve been “paid” in some way, which could include receiving a freebie, AND (2) they are under some form of editorial “control” by the brand. What are your thoughts on this? Do you think most people are aware of the “control” aspect? Do you think it matters?

I have so many thoughts on this! Firstly, I think disclosure is incredibly important. We’re in an age now where not only are audiences incredibly savvy but they’re also somewhat skeptical. It’s so important to be completely honest about their gifted items, paid campaigns, free trips and so on. Especially in an age where we are just feeling terrible and comparing ourselves to everything we see online.

I’m not sure how much the general public knows how much control a brand has over content. Often it can be very clear and sometimes it doesn’t look authentic to that influencer, so it can be a bit obvious. Other times, the brand might gift the influencer a product without any expectation for them to post, so it ends up just fitting in naturally.

The control aspect is key. If a brand gifts you an item, but then expects you to post on a certain day or see content before it goes live – then this is sponsored content. Even if you haven’t been paid for it, and that must be made clear to your audience. The guidelines are in place to protect consumers, which I appreciate.

You mention “gifting” by brands. Is the distinction between “paying” and “gifting” a product an important one to make? If so, why?

To me, yes. The two mean completely different things in my mind – when something is paid, I think of brand control, I think of money exchanging hands, and contracts signed. Gifted items and freebies although have monetary value, should be made clear in a different way. I do prefer to know that an influencer hasn’t purchased that product with their own money, for example, or didn’t pay for that holiday.

Something I hear often from colleagues and friends is that advertising on social media is “obvious enough,” and that consumers don’t need the #ad hashtag or similar disclaimers. As a general rule, do you think bloggers and influencers are actually clear and transparent enough? Is there sufficient self-regulation? Or were the regulators right to step in with new rules?

There are definitely #ads and #sponcon that are extremely obvious with their advertising messaging and aren’t being declared as such – but I don’t think that should matter. The regulators are absolutely right to step in with new rules and best practice. I also think there’s been a real effort from bloggers and influencers to declare ads, but there are still a select few (including celebrities and reality stars) getting away with not doing it.

What do you think some of the biggest concerns influencers and bloggers have with making it clear that adverts are indeed adverts? Aesthetics? Independence? Credibility?

I think fatigue? I think there are a lot of consumers who feel like they are constantly being advertised to, but we spend so much time on our phones, our laptops and social media now that advertising is just becoming more obvious. It’s always been there in TV, radio and print!

no ad

But at least for me, a lot of the bloggers that I followed before they were known as influencers, I followed them because I liked them as people (or their online personas), so I understand it can be jarring to see an ad thrown in with their regular content. But I enjoy supporting them still because I feel like I’ve been on that journey with them.

If you could speak to the advertising regulators directly and tell them one key thing about this issue, what would it be?

I do think a lot of the declaration can feel excessive, which does cause people to have to say “This isn’t an ad, I just love X”. My main issue has been the distinction between a gifted item as payment, especially as there can be a lot of influencers who receive gifted product and declaring it as an ‘ad’ or as ‘sponsored’ to me as a consumer, means something else entirely.

Finally, what have been the most challenging and rewarding things about running your own fashion and lifestyle blog thus far? What is something you hope to accomplish or participate in over the next few months?

The most challenging thing is time! I still work full-time in talent/influencer strategy, so that is my 9-5 job. Having to run my blog during evenings and weekends can be pretty tiring but also I just wish I could do more!

The most rewarding by miles and miles are the friendships I’ve made through blogging, that is what I cherish the most and is what keeps me coming back to create more content! Being able to speak to people all over the world is just a joy.

I hope to be able to get my life in order and continue to post consistently! Anything I can do to write more would be ideal, so hopefully some more freelance opportunities, or even speaking opportunities as well!

banner

Many thanks to Nicole for sharing her time, expertise and insight with me for this interview! You can follow her at The-Noteworthy.com, on Instagram at @NicoleOcran, and on Twitter @NicoleOcran

From stealing to kneeling, what do NFL player contracts say about “bad” behavior?

From stealing to kneeling, what do NFL player contracts say about “bad” behavior?

Three times each year, two professional American football teams journey across the pond to play against each other in the NFL London Games. This weekend however, four players from the Jacksonville Jaguars made headlines for something they did off the field. They were arrested under suspicion of fraud by false representation for attempting to leave a nightclub without paying the £50,000 ($64,000) bar tab.

According to ProFootball Talk, expensive bottles of champagne and vodka were sent to the players’ table. They thought someone else was paying, and were surprised to learn that they were expected to pay. The bill was settled hours after the arrest, and the players were released with no further action taken by police. “There was definitely a misunderstanding,” said Barry Church, one of the players arrested. “We handled it as a private matter within the team, and we’ll just go from there.”

Screenshot 2018-10-30 at 5.44.56 PM

Despite their fame and talent, at the end of the day, professional athletes are capable of making mistakes just like the rest of us. But unlike the rest of us, sports stars are often contractually obligated to maintain a positive reputation.

The NFL has had a formal policy addressing off-field conduct since 1997. The current 2014 Personal Conduct Policy prohibits physical violence, illegal possession of a gun or drugs, and cruelty to animals – remember Michael Vick and his dogfightingBut the policy also prohibits anything “that undermines or puts at risk the integrity of and public confidence in the NFL.” Even if a player’s conduct does not result in a criminal conviction, the NFL can impose fines, suspension, or even banishment from the league.

In addition to the NFL Policy, individual player contracts also contain “morality clauses.” Also known as a “moral turpitude clause” or “bad boy clause”, this permits an employer to end the contractual relationship if the employee’s conduct breaches the moral expectations laid out in the employment or endorsement agreement. For my overview of the history and use of morality clauses more generally, see Morality Clauses in Talent Contracts.

The 2012 contract between Arian Foster (“Player”) and the Houston Texans (“Club”) is available online thanks to a (fascinating) IPO filing with the Securities and Exchange Commission. Clauses regarding Foster’s behaviour and conduct included:

  • Player agrees to give his best efforts and loyalty to the Club, and to conduct himself on and off the field with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game. 
  • If at any time, in the sole judgement of Club, Player has engaged in personal conduct reasonably judged by Club to adversely affect or reflect on Club, then Club may terminate this contract.
  • Player recognizes the detriment to the League and professional football that would result from impairment of public confidence in the integrity and good character of NFL players.

“Meaning Transference” and marketing magic

You might be wondering why a football team should care about the off-field behaviour of its players. As long as the guy can run the ball or block a tackle, who cares if he’s arrested for trying to skip out on a bar tab. Right? Wrong.

Consider for a moment the amount of money teams and companies invest in employment contracts and endorsement agreements. By way of example, Russell Wilson earned $2 million during his first three seasons with the Seattle Seahawks. In 2015, the Hawks rewarded their quarterback with a renewed contract worth nearly $90 million. Wilson also gets $10 million a year from his deals with Bose, Nike, and Alaska Airlines. On the other side of the country, the New York Giants’ wide receiver Odell Beckham Jr is earning about $10 million over four years. But the real kicker is that Nike recently signed him for the biggest shoe endorsement ever, worth $25 million over five years.

CFO
“Seattle’s hometown airline” Alaska Airlines “couldn’t be more proud of Seattle’s football hero, Russell Wilson.” Thanks to Wilson’s impressive skill and wholesome image, they even made him their CFO! Chief Football Officer, that is.

Meaning Transference is a social theory which posits consumers “transfer” the perceived ideals, credibility and reputation of celebrities to the associated product or service being sold (Grant McCracken). Because negative perceptions can also transfer, a company will want to distance themselves if a celebrity behaves badly. Essentially, morality clauses protect the team or company’s public image from the athlete’s potential scandals. In practice, this could mean suspending or terminating the contract, which could cost the athlete thousands – or potentially millions – of dollars.

The crux of any morality clause is how the “bad behaviour” is defined. Does a player kneeling during the American national anthem adversely affect the image of the NFL?

Given today’s heated political climate, it’s no surprise that professional athletes are increasingly voicing – or otherwise demonstrating – their opinions on social issues. In 2016, Colin Kaepernick of the San Fransisco 49’s started the trend of protesting police brutality and racial inequality, by kneeling during the national anthem at the start of games. Other players soon joined in, much to the ire of many football fans and prominent figures, including President Trump. That same year, Kaepernick was deemed the most hated player in the NFL.

Speaking to The Washington Postconstitutional law Professor Fred Smith Jr. described the anthem debate as a “clash of values which has become a very fraught issue in the American political imagination.” The NFL reacted to the situation by announcing a new policy in May of this year: players must either stand for the national anthem on the field or wait in the locker room. The policy was then shut down by the NFL’s labour union (NFLPA) only two months later.

As the NFL and the NFLPA continue to negotiate, “no new rules relating to the anthem will be issued or enforced”. However, introduction of the new rules in the first place demonstrates that the NFL is at least attempting to mitigate the perception that it is an unpatriotic organisation. It could be argued that from the NFL’s perspective, it is the result of the public’s perception that matters, and not the conduct itself. 

In spite of the furor and uproar, Nike made a risky decision in September to feature Colin Kaepernick in an advertising campaign. Despite some backlash and boycotts, the move paid off handsomely overall: Nike received valuable free publicity, and online sales and stock price skyrocketed. In this way, Kaepernick’s kneeling is both detrimental to one organisation (the NFL), as well as highly profitable for another (Nike).

Image result for colin kaepernick nike
Nike released a controversial commercial featuring Colin Kaepernick, which hints at the embroilment over NFL players kneeling during the American national anthem.

Ultimately, it is critical to understand that morality clauses attempt to regulate something that is continually in flux. Opponents of morality clauses worry that the definition of what constitutes “immoral” or damaging activity could be too broad and subject to abuse by the employer. Smart sports stars and their lawyers will therefore do well to ensure that morality clauses are carefully negotiated and written precisely in order to protect their position – and their paycheques.

UK regulator to investigate social media influencers

UK regulator to investigate social media influencers

A number of celebrities and social media stars are being investigated by the Competition and Markets Authority, which says it has concerns that some influencers are failing to disclose that they are being paid for their endorsements.

In the early days of social media, Instagram and Facebook were seen as ways to connect with those closest to us, and to provide an insight into our private lives. Today however, models and celebrities can make thousands (if not hundreds of thousands) of dollars with every photo they post, simply by featuring a product in their image. This nuanced form of targeted marketing deliberately blurs the line between “advertising” and “personal” sharing, and it’s big business. According to the Financial Times, Instagram influencers earned more than $1bn (£770m) in 2017.

Related image

Pictured here is Chiara Ferragni, Italian fashion writer, influencer, businesswoman; and the first-ever blogger to be the focus of a Harvard Business School case study. Is this post of hers an advertisement, or is she just sharing the love?

Under American law, companies who work with influencers (defined as “key individuals with significant social media followings”) to promote products, services, or brands must follow certain rules, many of which are set out in Title XVI (Commercial Practices) of the Code of Federal Regulations. In particular, when there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement, such connection must be fully disclosed. (16 C.F.R. §§ 255.0-255.5).

In practice, this means that when a company pays an individual – either in cash, or through discounts, free travel, or products – the company and influencer should enter a written contract. The contract should oblige the influencer to both “disclose its material connection to the advertiser clearly and conspicuously,” as well as “refrain from making any false or misleading statements about the products and services.”

Related image

nearly identical post to Chiara’s above, but Victoria at inthefrow here has included #ad. Is that clear and conspicuous enough?

Here in the United Kingdom, where influencers are paid to promote, review or talk about a product on social media, the law requires that this must be made clear. The use of editorial content that promotes a product –also known as “advertorials” or “native advertising”– must clearly identify that the company has paid for the promotion.

Earlier this month, the Competition and Markets Authority (CMA) launched an investigation into whether consumers are being misled by celebrities who do not make clear that they have been paid, or otherwise rewarded, to endorse products online. In its press release, the CMA announced that it has already written to a range of celebrities and social media influencers to request information about their posts and the nature of the agreements they have in place with brands. This comes just weeks after Made in Chelsea star Louise Thompson was slapped on the wrist for failing to disclose an Instagram post as a paid-for advertisement for watchmaker Daniel Wellington.

The regulator is also asking consumers to share their experiences, and says it would “particularly benefit from hearing from people who have bought products which were endorsed on social media.”

Related image
Notice that this post says at the top, “paid partnership with.” Is that better than #ad?

The investigation is being carried out under Part 8 of the Enterprise Act 2002 in respect of potential breaches of the Consumer Protection from Unfair Trading Regulations 2008. If an influencer ignores the CMA’s requests to comply with the law, an enforcement order in court. As for next steps, breaching such an order can lead to an unlimited fine or a jail term of up to two years. However, examples of meaningful penalties are still almost non-existent.

What do you think? Are influencer adverts easy enough to spot, without the hashtags and caveats? Interestingly, a study by Bazaarvoice and Morar Research found that nearly half of the 4,000 UK consumers polled are “fatigued” by repetitive influencer content. The majority also said they felt influencers were publishing content that was “too materialistic” and “misrepresented real life.” Notwithstanding this, the World Federation of Advertisers reported that 65% of multinational brands plan to increase their influencer investment. Perhaps there’s truth in what Chiara herself once quipped: “some loved me, some hated me—but they all followed me.”

 

Interested in this topic? Be sure to check out The Fashion Law’s Annual Brand and Influencer Report: The Good, Bad, and Highly Problematic. Featured photo above is Lena Perminova at Paris Fashion Week Autumn/Winter 2018 | Source: Getty Images

Sir Cliff Richards v BBC: is publicity the soul of justice?

Sir Cliff Richards v BBC: is publicity the soul of justice?

You don’t have to be a privacy or media lawyer to have heard of the sex abuse allegations levied against celebrities in the entertainment industry over the last few years. The investigations concerning Sir Cliff Richard, a famous British musician, included a widely-televised raid on his estate in Berkshire by South Yorkshire Police. Nearly four years after the BBC first named and shamed Sir Cliff in what is now considered to have been “sensationalist” journalism, the High Court has determined that his rights of privacy were infringed.

What makes this case so interesting is that it does not focus on defamation —that is, the publication (or voicing) of a statement which adversely affects another person’s reputation. Instead, Sir Cliff won his case on the basis that the BBC’s wrongful disclosure of his private information was an invasion of his privacy. 

In Sir Cliff Richard v BBC and South Yorkshire Policethe Court considered if suspects who have not been formally charged by police have a reasonable expectation of privacy in respect of the criminal investigation. How are an individual’s rights to privacy balanced against the freedom of expression enjoyed by media organisations? That the suspect in this case is a celebrity only complicates matters, as it calls into question the importance publishing private details in the name of public interest.

Prosecutors said in 2016 that there was not enough evidence to justify criminal charges against Mr. Richard, one of Britain’s best-known entertainers, with a career spanning some 60 years. However, the BBC stands by their reportage of the allegations, and I suspect the BBC will indeed appeal this decision.

As if written for the stage, the Justice Mann’s 120-page judgement begins with a summary of key characters and the plot as it unfolded…

Related image
Daniel Johnson, in front of Sir Cliff’s Berkshire estate

Daniel Johnson, an investigative journalist for the BBC, received a tip-off from a police insider in June 2014 that Sir Cliff was under investigation for historic sex offences against a child. In a manner some would consider blackmail, Johnson “exploited the opportunity to get confirmation of his story about Sir Cliff, and more details if possible” from the South Yorkshire Police (SYP). In exchange for Johnson not publishing the story immediately, the SYP promised that he would be given advance notice of the search of Sir Cliff’s estate. The raid was eventually conducted in August 2014, with BBC crew waiting at the gates and helicopters hovering overhead to capture the whole ordeal.

In case you’re wondering where the Beeb’s lawyers were, the BBC held a meeting to discuss whether to name Sir Cliff and when to broadcast. In her testimony, Senior Editor Fran Unsworth explained that “the legal risk was diminishing because they had got a lot of confirmation of the facts of the story”. The principal legal concern seems to have been in respect of factual accuracy and defamation, and not privacy – as “the lawyers had not flagged that up to her as a specific risk” (para 111).

scne2
the (not very exciting) footage shows plain-clothes police entering Sir Cliff’s estate.
scene1
Three gloved individuals appear to be looking through what is likely Sir Cliff’s office

The legal framework of Sir Cliff’s privacy claim is enshrined in European Convention on Human Rights, brought into force in the UK by the Human Rights Act 1998.

Article 8 sets out the right to privacy: “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law […] or for the protection of the rights and freedoms of others.”

Article 10 upholds the BBC’s competing rights of expression: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society [including those] for the protection of the reputation or rights of others.”

In instances where which both Article 8 and Article 10 are engaged, the Court has to perform a balancing and weighing act to ascertain which predominates. Neither article has prima facie precedence over the other.

Article 8 privacy protections arise only where an individual has a reasonable expectation of privacy. For example, if I have a conversation with my friend in a crowded coffee shop in central London, I cannot reasonably expect our discussion to be protected as truly private.

The 77 year-old singer told the Court that he suffered an “unbelievable amount of hurt and pain” after the BBC broadcast the allegations that he had sexually assaulted a boy in 1985. “It felt like torture, sustained over almost two years. It felt as though everything I had done, everything I had built and worked to achieve, was being torn down, like life itself was coming to an end.”

But one might wonder if, as a celebrity, Sir Cliff cannot claim to have an expectation of privacy. A certain amount of emphasis was given by the BBC to the fact that Sir Cliff was a public figure, and one who had promoted his Christian beliefs. Because Sir Cliff had been so vocal (ie public) about Christian morality, the BBC considered that his alleged sexual crimes against a child qualified as a matter of public interest. To that point, the Court acknowledged that in certain special circumstances, the public’s right to be informed can extend into private aspects of public figures (para 276).

However,  Rocknroll v News Group Newspapers [2013] EWHC 24 (Ch) upheld that a public figure is not, by virtue of their fame, necessarily deprived of his or her legitimate expectations of privacy. Axel Springer v Germany 39954/08 [2012] ECHR 227 also makes clear that the safeguard afforded by Article 10 to journalists is subject to the proviso that they are acting in good faith and on an accurate factual basis, and that they provide “reliable and precise” information in accordance with the ethics of journalism.

In considering the BBC’s argument that the stories about Sir Cliff had been published in the public interest, the Court disagreed, saying that reporters at the BBC “were far more impressed by the size of the story and that they had the opportunity to scoop their rivals.” (para 280) This echoes the findings in Axel Springer, in that photographs and commentary which expose a person’s private life cannot be considered to have been published in the name of public interest, if they were in fact made public only to “satisfy the curiosity of a particular readership” (Axel Springer, para 48). It is unsurprising in my view that Justice Mann “came to the clear conclusion that Sir Cliff’s privacy rights were not outweighed by the BBC’s rights to freedom of expression” (para 315).

Publicity is the very soul of justice. In the darkness of secrecy, sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate. Where there is no publicity there is no justice.

Jeremy Bentham. legal and social reformer (1748 – 1832)

Will this case have a chilling effect on media freedoms? Writing for The Guardian, Professor of Financial Journalism Jane Martinson argues that “as long as the media reports accurately – making it clear when a suspect is under investigation for a serious crime, rather than arrested or charged – there should be no bar to the public knowing what is going on.” However, in my view this fails to take into consideration the complexity of public perception. In his concluding remarks, Justice Mann cited “the failure of the public to keep the presumption of innocence in mind at all times” as an aggravating factor against the BBC.

Other criticisms focus on the point that this case provides an undeserved blanket of anonymity to criminals, providing a way to keep allegations against possible abusers secret. Whether or not there is a reasonable expectation of privacy in a police investigation is in actuality fact-sensitive question, and is not capable of a universal answer (para. 237). According to Police Guidance on Relationships with the Media, the names or identifying details of suspects of crime should not be released by police to the press or public, unless special circumstances apply — such as threat to life, the prevention or detection of crime, or a matter of public interest.

The inevitable stigma attached to the extremely serious allegations against Sir Cliff made the invasion of privacy even worse. When an individual’s good reputation is tarnished, even wrongfully, it may never be recoverable. This is especially harmful to celebrities, who rely so heavily on public favour. In my view, Sir Cliff Richards v BBC is not a sweeping new precedent that stifles freedom of the press: it simply restates the statutory protections afforded by the Human Rights Act within the context of already-established European and English case law.

Is Taylor Swift getting a copycat Reputation?

Is Taylor Swift getting a copycat Reputation?

Taylor Swift’s latest music video, Delicate, has been criticised for its obvious similarities to a 2016 Kenzo perfume advert directed by Spike Jonze.

In the Kenzo advert, we see a young woman portrayed by actress and dancer Margaret Qualley at a posh black tie event in a hotel. Looking beautiful in an evening dress but nevertheless seemingly uncomfortable and bored, she quietly slips out of the ballroom to pensively roam the hallways of the hotel alone. What made the advert so memorable was that Qualley suddenly starts a wild and garish dance to an upbeat song. W Magazine lauded the advert as “one of the best perfume commercials of all time,” and the Guardian called itone of the most engaging ads” of the year.

Earlier this month, Taylor Swift released the video for Delicate, the latest single off of her sixth studio album, Reputation. Directed by Joseph Kahn, the video follows Swift as she walks through a glamourous hotel, increasingly fatigued with the attention of the press and her adoring fans. She eventually manages to escape through the corridors and, under the premise of being invisible, performs a bizarre dance routine through the hallways.

Screenshot 2018-03-24 at 4.34.34 PM.png
the opening tracking shot in each video shows a beautiful but bored woman in an evening dress, but the similarities don’t end there…

In addition to the plot – in which a bored young woman has a crazy dance party in a fancy hotel – the videos share a colour scheme, choreography, and camera angles. Although Taylor’s dress is blue and Qualley’s is green, both are deep jewel tones and cut a similar, sleeveless silhouette. Twitter users were quick to point out that even the facial expressions of the two women appeared to mirror each other.

Kenny Wassus, New York Magazine’s senior producer of original video, called Taylor’s video “the drunk sorority knockoff” of the original Kenzo advert. Twitter users have been sharing a slew of direct comparisons between the two videos, including:

5aa6aab0a4af7819008b4636-1136-852
“gorilla” dance
5aa6aacf782fde91758b45c2-1136-852
crazy facial expressions
Screenshot 2018-03-24 at 4.32.26 PM.png
profile tracking shot of militant stomping

To be fair, there are a few differences. Qualley’s only audience remains the camera, while an “invisible” Swift can dance through crowds. Qualley wears heels, whereas Swift kicks hers off to dance barefoot. Qualley’s performance ends by jumping through a massive logo for the perfume, whereas Swift’s show ends in the rain with her meeting a mysterious person.

The Kenzo advert was a viral success because, as AdWeek explained, “the exuberantly choreographed video was less about technical innovation than about how it changes the way women are portrayed in marketing.” Fans of Swift may therefore be somewhat unnerved that the international pop star, known for being a creative, self-made woman (see Taylor Swift: from saccharine songstress to fearless feminist) has chosen in this instance to be so heavily inspired by another artist’s originality.

Despite claims that Swift’s video is a “blatant rip off”, a Kenzo representative told Dazed that they will not be making a comment on the matter. Accordingly, a lawsuit or formal complaint is unlikely. Taylor Swift’s representation are yet to respond to the criticism.

Delicate is not the first video directed by Joseph Kahn to invite copyright controversy. His earlier project for Swift, Look What You Made Me Do, was compared by many to Beyoncé’s Formation. 

Related image
Swift vs Beyoncé

In my earlier post All the Stars and Constellations, I noted that inspiration is a common and important part of most creative processes. Even the most original ideas borrow from earlier art, expressions, and themes. The question in this instance concerns the grey area between inspiration and copyright infringement. While plagarism can be easy to spot, the Taylor Swift videos present more of a challenge. Remember, copyright law only protects specific expression of an idea, and not the idea itself.

Kenzo and Spike Jonze are unlikely to pursue legal action, because one cannot obtain intellectual property rights for a vibe or feel of a video – or even the “plot” of a woman dancing through a hotel. However, it’s worth noting that this matter is already being heard in the court of public opinion, and the verdict doesn’t seem to favour Swift.

Morality clauses and talent contracts

Morality clauses and talent contracts

As the year draws to a close, most of us will think back on the people and events that shaped 2017. Considered by many to have been one of the biggest stories of the year, it would be difficult to ignore the social (and legal) discourse surrounding the more than forty high-profile men caught in sexual misconduct scandals.

Last month, Netflix removed Kevin Spacey from its hit show House of Cards after Spacey was accused of sexual misconduct. However, Spacey claims Netflix cannot legally fire him because his contract did not contain a morality clause. Similarly, Hollywood producer Harvey Weinstein’s employment agreement may have only a very “loose” morals clause that does not allow for his termination, so long as he pays contractual fines and any costs incurred by his company due to his behavior.

A morality clause is a contractual provision that gives a party (usually a company) the unilateral right to terminate the agreement, or take punitive action against the other party (the “talent,” which is usually an individual whose endorsement or image is sought) in the event that such other party engages in reprehensible behavior or conduct that may negatively impact his or her public image and, by association, the public image of the contracting company (source).

Continue reading “Morality clauses and talent contracts”

The Monarchy, Meghan, and Trade Marks

The Monarchy, Meghan, and Trade Marks

Kensington Palace announced this week that Prince Harry and Meghan Markle are officially engaged, and are expected to marry next May. Before we dismiss the celebrations as just another celebrity extravaganza, it’s important to remember that the upcoming nuptials will benefit the economy, too.

This year, the British Monarchy generated £1.77 billion to the UK economy. This includes a £50 million contribution for fictional shows like The Crown and Victoria, which offer a glimpse into the mystique of the Royal family. The figure also takes into consideration £550 million from tourism: in 2016, 2.7 million people visited Buckingham Palace alone.

When William and Kate married in 2011, the British economy was boosted by £2 billion, with £26 million being from Wills and Kate souvenirs and merchandise. Likewise for Harry and Meghan, brands and retailers will want to capitalise on the goodwill and excitement surrounding another Royal wedding. However, certain rules apply to businesses wishing to use images of the Royal family, or their associated symbols and phrases.

Continue reading “The Monarchy, Meghan, and Trade Marks”