Imitation or Inspiration?: The Rise of Celebrity Lawsuits Against Fast Fashion Brands
For better or for worse, a large portion of the population is present on social media and, therefore, is subject—or at least exposed—to celebrity and influencer content.1 This exposure can influence the buying habits of regular consumers who seek the bargain avenue to parallel celebrity lifestyle, and brands have taken notice.2 Particularly successful at taking inspiration from celebrities and influencers are fast fashion brands, which approach design, creation, and marketing of fashion with an emphasis on making fashion trends quickly and cheaply available to consumers.3 While fast fashion brands have given consumers with less substantial buying power access to popular styles, fast fashion has been targeted by celebrities and influencers for crossing the line between inspiration and stepping into the legal realms of right to publicity and misappropriation.4
The right of publicity and misappropriation claims5 are the appropriation of one’s name, image, likeness, or other indicia for commercial gain.6 The most common elements are: (1) use of someone’s name, identity, likeness, or persona; (2) through which use the defendant received a commercial advantage; (3) where the use was made without the person’s consent; and (4) there is an injury to the plaintiff.7 So who can bring a suit for the right of publicity and misappropriation where the black letter law does not require celebrity status? Well, courts are still debating.8 At its inception, the right of publicity and misappropriation was reserved for well-known celebrities or people who had a substantial monetary value attached to their fame.9 But courts have shifted away from this narrow view of “celebrity” and recognized the right of publicity as belonging to a broader range of individuals.10 This shift potentially allows people, such as micro-influencers who have a modest monetary value attached to their name or likeness, to bring claims against companies, like fast fashion brands, who commercially benefit from using images and likeness that parallel their personal brand.
While the liabilities for fast fashion brands seem to be expanding, fast fashion brands have already seen some expensive lawsuits.11 Fast fashion brands like TopShop, Abercrombie & Fitch, and Missguided, have faced Rihanna, Mike “The Situation” Sorrentino, and even Kim Kardashian West with the most expensive of the damages being nearly $2.8 million.12 The risk with increasing social media influence on buying patterns is that a single post from an influencer can span from a few thousand dollars to $500,000.13 So, an influencer or celebrity has considerable evidence of a tangible pecuniary value attached to his or her name. As the power of social media expands, a key consideration for fast fashion brands will be to analyze whether the risk of litigation from a celebrity or influencer-inspired look or product line is less expensive than the profit margins of the same look or product line without the influencer or celebrity involvement.
So, should the everyday consumer be concerned about losing their go-to fast fashion brands? Probably not. Fast fashion brands can easily take steps to reduce their liability while still reaping a substantial profit from sales. For example, fast fashion brands can decrease liability by not outright comparing their clothes to a picture of a celebrity in similar garments. The brands can use models that look less similar to celebrities or influencers, and market the clothes without taking from celebrities’ music videos, television shows, or Instagram posts.14 Fast fashion will likely persevere but should take some preventative measures when pulling inspiration from celebrities and influencers due to the prevalence and gravity of social media and the expanding protections under the right of publicity and misappropriation.
J. Clement, Percentage of U.S. population who currently use any social media from 2008 to 2019, Statista (Aug. 9, 2019), https://www.statista.com/statistics/273476/percentage-of-us-population-with-a-social-network-profile/. [https://perma.cc/BZ6H-Z5GD]↩
How social media is influencing purchasing decisions, Global Banking and Fin. Rev. (Jul. 13, 2018), https://www.globalbankingandfinance.com/how-social-media-is-influencing-purchasing-decisions/. [https://perma.cc/8QVR-8K57]↩
Fast Fashion, Merriam Webster Online Dictionary, https://www.merriam-webster.com/dictionary/fast%20fashion. [https://perma.cc/C3ZP-A3PN]↩
Trial Pleading, at 1, Kimsaprincess, Inc. v. Missguided USA Finance Inc., 2019 WL 759036 (C.D. Cal.); Robyn Rihanna Fenty v Arcadia Group Brands Ltd.  EWHC 2310 (Ch.); Motion for Summary Judgment for Defendant, MPS Entertainment LLC v. Abercrombie & Fitch Stores, Inc., No. 11–24110–CIV, 2013 WL 3288039 (S.D. Fla. June 28, 2013)↩
Right of publicity and misappropriation tend to be used interchangeably throughout case law while varying slightly between jurisdictions. See Eric E. Johnson, Disentangling the Right of Publicity, 111 Nw. U. L. Rev. 891, 902 (2017).↩
Id. at 893.↩
Memorandum from Kelli L. Sager to the MLRC Conference (Sept. 2012) (on file with the University of Kansas School Library).↩
Johnson, supra note 5, at 894.↩
Id. at 897.↩
See Kimsaprincess, 2019 WL 759036, at *1; Rihanna v. Arcadia Group Brands Ltd.  EWHC 2310 (Ch.); Second Filing Complaint for Plaintiff, MPS Entertainment LLC v. Abercrombie & Fitch Stores, Inc., 2012 WL 3578947 (S.D. Fla. June 28, 2013).↩
Kate Taylor, Kim Kardashian revealed in a lawsuit that she demands up to half a million dollars for a single Instagram post and other details about how much she charges for endorsement deals, Business Insider (May 9, 2019), https://www.businessinsider.com/how-much-kim-kardashian-charges-for-instagram-endorsement-deals-2019-5. [https://perma.cc/U3V2-53KE]↩
See Kimsaprincess, 2019 WL 759036, at *1.↩