photos – Attorney Evan Brown

April 5, 2020 Contracts

Influencer agreements: what needs to be in them

If you are a social media influencer, or are a brand looking to engage an influencer, you may need to enter into an influencer agreement. Here are five key things that should be in the contract between the influencer and the brand:

Obligations
Payment
Content ownership
Publicity rights
Endorsement guidelines compliance

Obligations under the influencer agreement.

The main thing that a brand wants from an influencer is for the influencer to say certain things about the brand’s products, in a certain way, and at certain times. What kind of content? Photos? Video? Which platforms? What hashtags? When? How many posts? The agreement should spell all these things out.

Payment.

Influencers are compensated in a number of ways. In addition to getting free products, they may be paid a flat fee upfront or from time to time. And it’s also common too see a revenue share arrangement. That is, the influencer will get a certain percentage based on sales of the products she is endorsing. These may be tracked by a promo code. The contract should identify all these amounts and percentages, and the timing for payment.

So what about content ownership?

The main work of an influencer is to generate content. This could be pictures posted to Instagram, tweets, or video posted to her story. All that content is covered by copyright. Unless the contract says otherwise, the influencer will own the copyright. If the brand wants to do more with that content outside of social media, that needs to be addressed in the influencer agreement.

And then there are rights of publicity.

Individuals have the right to determine how their image and name are used for commercial purposes. If the brand is going to feature the influencer on the brand’s own platform, then there needs to be language that specifies the limits on that use. That’s key to an influencer who wants to control her personal brand and reputation.

Finally, endorsement guidelines and the influencer agreement.

The federal government wants to make sure the consuming public gets clear information about products. So there are guidelines that influencers have to follow. You have to know what these guidelines are to stay out of trouble. And the contract should address what happens if these guidelines aren’t followed.

About the author: Evan Brown is an attorney helping individuals and businesses with a wide variety of agreements involving social media, intellectual property and technology. Call him at (630) 362-7237 or send email to ebrown@internetcases.com.

May 30, 2012 Privacy

Is there a constitutional right of privacy in a family member’s autopsy photos?

Marsh v. County of San Diego, — F.3d —, 2012 WL 1922193 (9th Cir. May 29, 2012)

Yes, there is now. At least in the Ninth Circuit. Since the defendant was found to be not liable for violation of that right because of qualified immunity, an appeal is unlikely and the ruling will probably stand.

autopsy table

Background

When defendant Coulter retired from the district attorney’s office, he kept a photocopy of an autopsy photo (of a 2-year old boy with head injuries) from one of the cases he tried in 1983. What’s even more bizarre is that defendant turned over the photo and a memo to a newspaper and television station.

When the mother of the deceased little boy who appeared in the photo heard about this, she sued the district attorney and the county for violation of her due process rights under the Fourteenth Amendment of the United States Constitution.

The trial court threw out the case on summary judgment. Plaintiff sought review with the Ninth Circuit. Though the court found defendant was not liable for a constitutional violation because of qualified immunity, it held that plaintiff had a constitutionally protected right to privacy over her child’s death images.

Due Process

The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution has been held to protect “a right of personal privacy, or a guarantee of certain areas or zones of privacy.” Carey v. Population Servs. Int’l, 431 U.S. 678, 684 (1977) (quoting Roe v. Wade, 410 U.S. 113, 152 (1973)). This privacy right is of two types: (1) the individual interest in avoiding disclosure of personal matters, and (2) the interest in independence in making certain kinds of important decisions concerning, for example, family relationships and child rearing.

In this case, the court observed that other courts, including the Supreme Court, had recognized a common law (but not constitutional) protection against the disclosure of a deceased family member’s death scene photos. But this case was the first time a court held that protection against public disclosure of such photos was a constitutionally protected right under substantive due process.

The court noted that “the well-established cultural tradition acknowledging a family’s control over the body and death images of the deceased has long been recognized at common law.” Because such sensibility is so deeply-rooted in our culture, the test for both types of substantive due process were met in this case. Protecting the interest would serve to avoid the disclosure of the graphic details of a family member’s tragic death (which reveals much about the manner of death and extent of suffering). In the context of a child’s autopsy photos, the right of a parent to determine the “care, custody and control” of the child is protected by a federal privacy right against public disclosure.

State Law – Procedural Due Process

The court held that plaintiff’s procedural due process rights were violated by the disclosure of the autopsy photo. California has a statute — Cal.Civ.Proc.Code § 129 — that codifies the state’s public policy against the reproduction of post-mortem photos for improper purposes. This served to create a liberty interest in plaintiff that could not be taken away without due process. The court found that plaintiff had sufficiently alleged a claim of violation of the statute and, therefore, a deprivation of a state-created liberty interest.

Photo credit: atluxity under this license.

January 22, 2011 Privacy

College must reinstate nursing student who posted placenta picture on Facebook

Byrnes v. Johnson County Community College, 2011 WL 166715 (D. Kan., January 19, 2011)

Plaintiff nursing student and some of her classmates attended a clinical OB/GYN course at the local hospital in Olathe, Kansas last November. They got permission from their instructor to photograph themselves with a placenta. Plaintiff posted the photo on Facebook. She got expelled from school. Yes, I know you want to see the photo. Here it is.

So she sued the college for violation of her due process rights and sought an injunction ordering that she be reinstated. The court granted the motion.

The court found that the appeal process that the college provided to plaintiff was in no way a fair and unbiased opportunity for her to fully present her case before a neutral and unbiased arbitrator.

The instructor had granted permission for plaintiff to take the picture — and may have consented to its publication on Facebook — but plaintiff did not get an adequate chance to make that argument. The court observed that “photos are taken to be viewed,” and that “by giving the students permission to take the photos, which [the instructor] admitted, it was reasonable to anticipate that the photos would be shown to others.”

Also relevant in the analysis was the absence of any apparent privacy right implicated by showing the placenta. Nothing in the photo showed any patient identification, nor were any of the nursing students able to testify that they knew the patient’s identity. The court found it irrelevant that the placenta appeared to be “fresh,” rejecting the defendants’ implications that that would somehow indicate who the patient was.

Because plaintiff had shown a likelihood of success on her due process argument, and had met the other requirements for the injunction (such as a showing of irreparable harm if not reinstated), the court granted the order that plaintiff be permitted to take last semester’s final exams and permitted to go back to class.

November 5, 2009 Miscellaneous, Privacy

Death scene photos posted on the web did not subject coroner to liability

Werner v. County of Northampton, 2009 WL 3471188 (3rd Cir. October 29, 2009) (Not selected for official publication).

Plaintiff’s son died in the family home. No one seems to know for sure whether it was an accident or suicide. Even Plaintiff gave conflicting statements to the court — in his complaint he said it was not suicide, but in a later-filed brief he said it was.

Do not cross this line and I mean it.

In any event, on the day the son died, the coroner came to the house to take pictures. Somehow the coroner’s son got a hold of the photos and posted them on the web with a caption “There is no better way to kill yourself.”

Plaintiff sued the coroner under 28 U.S.C. 1983 which, among other things, gives citizens a cause of action when their rights are violated by someone acting under the law. Plaintiff claimed the coroner committed a due process violation of Plaintiff’s liberty interests in his reputation by allowing the photos to be posted.

To succeed on his liberty interest claim, Plaintiff was required to satisfy the “stigma plus” test. The district court dismissed the complaint, finding Plaintiff’s allegations did not meet this standard.

A statement that is “stigmatizing” under this test must be (1) made publicly, and (2) false. In this cause, the court found that the death scene photos were the relevant statement. But there were no allegations in the complaint that the photos themselves were “false.” (What the court was probably saying here is that the photos had not been Photoshopped or otherwise changed in a way to make them not accurately portray the scene.)

The court made a fine distinction in the process of dismissing the case. In response to the motion to dismiss, Plaintiff argued that the thrust of his argument was that the website falsely suggested his son committed suicide. But the court found otherwise, carefully looking at the allegations of the complaint which, for example, said that the photos “fueled the false impression that the Plaintiff’s son committed suicide.”

There were no allegations that the photos themselves were the false statements. But what about the caption, “[t]here is no better way to kill yourself,” you ask? Though the opinion does not address this point, one is left to conclude that that language could not be attributed to the defendant coroner, since it was his son that posted the photos, and not himself.

Photo courtesy Flickr user Fabio Beretta under this Creative Commons license.

UMG and Motley Crue sued for infringement of band photos

Toma v. Motley Crue et al., No. 08-3479 (N.D. Ill., Filed June 17, 2008)

The purported owner of the copyright in photos taken of members of Motley Crue way back in 1981 has filed suit in the U.S. District Court for the Northern District of Illinois, alleging that the band, Universal Music Group and Singatures Network have committed copyright infringement. [Read the Complaint] Interesting to see UMG, who is frequently on the dishing-it-out side in so many of the file sharing lawsuits now being put in the position of taking it.

The claims in the lawsuit are pretty straightforward, and the complaint is written in typical federal pleading bare bones style. In a nutshell, plaintiff Toma allegedly acquired the copyright in the photos through assignment from the photgrapher, one Michael Pinter (though Toma didn’t seek registration until March of this year). The defendants are alleged to have committed infringement by “publishing and selling” copies of the images.

Toma seeks actual damages plus costs and attorney’s fees (not sure of the basis for an attorney’s fee award given the timing of registration) as well as injunctive relief from any futher infringement.