Top fashion legal topics – # 7 – Fashion companies “go social”: the legal risks

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After wearable technologies, special rules for foreign franchisors in Italy, 3D Printers à la mode, social media and fashion and online retail, we will cover the legal risks connected to the usage of social media by fashion companies.

More and more companies “go social“: there are now many platforms dedicated specifically to fashion themes. Some of them are managed directly by the fashion companies: indeed 40 % of the fashion companies have a blog or other platforms where their fans may interact. Moreover, many fashion companies involved in the sector are present on the most popular social networks, such as Facebook, Twitter, LinkedIn and Pinterest.

Social networks represent a tremendous opportunity for fashion companies to target their customers and create communities. On the other hand, however, an inappropriate use of the fashion social platforms may raise a number of legal issues.

The first potential risk is related to the content which is uploaded by users and displayed on the platforms managed by fashion companies and on the official pages of the company on social networks. A typical example is Pinterest, a social network based on the sharing of images and videos. Users can browse other pinboards for images, “re-pin” images to their own pinboards, or “like” photos. Many fashion companies have a Pinterest profile, and allow users to share content using their website.

The proper use of images on the internet is a delicate matter. Photographs are typically subject to copyright (for artistic photographs) or to related rights (for non-artistic pictures): therefore a member of the public should gain permission from the copyright holder (which can be a person other than the author) before pinning the photos. Furthermore independent rights belong to the person in the photograph or portrayed in a drawing.

The digitization of works  and the web ease the reproduction and communication to the public  of content of various kind. Only part of this, however, is duplicated and made available to the public with the authorization of all the right-holders:  the vast majority of the material that is published on social networks – for example on Facebook – circulate without the permission of the copyright holder.

The publication of infringing material on a user profile could possibly fall under an exemption to exclusive intellectual property rights under Italian laws considering  that pictures, videos and any other content are used to express the status of mind of the users (lack of lucrative purpose). On the contrary, there will be much less room for justification when the abuse involves social platforms made available by the fashion companies or the profile of the official page of  fashion companies on the social media. In this case, in fact, the right-owner could challenge the commercial use of the images on the internet. Fashion companies would therefore become easy targets for copyright infringement actions. 

Moreover it is necessary to consider that majority of the social networks have a compliance policy to react to infringements by third parties of their intellectual property rights, and in case of violation may disconnect the profiles involved in the infringement. For example, under Pinterest terms and conditions of use, Pinterest, in appropriate circumstances and at its own discretion, reserves the right to disable and/or terminate the accounts of users who repeatedly infringe or are repeatedly challenged to infringe the copyrights or other intellectual property rights of others.

In conclusion, fashion companies need to put the utmost care in order to avoid to create the conditions for the users to upload illegal contents on their platforms, since in doing this they run relevant legal risks (e.g. to be considered liable for copyright infringement or – and this can be even worst -  to lose their “social” credibility).