Image Rights: Understanding the Fundamentals of Brand Endorsement

Introduction

With the role technology plays in marketing, advertising and distribution of products, especially in the advent of social media, many brands promote their designs by relying on everyday images of existing customers or brand influencers advertising their products. For example, Erica Nlewedim, an actress and media personality, has been seen several times wearing Lanre DaSilva and Tubo clothing designs. These customers and brand influencers flaunt these designs on their social media, and the designers leverage this for greater engagement and profitability.

Given the commercial interest of these brands, which ranges from clothes, jewellery, shoes, cosmetics, skincare products, food and even services, they take the proactive step of creating a contractual relationship between themselves and these individuals, referred to as brand ambassadors. This relationship is created through the execution of what is known as a Brand Endorsement Agreement or Contract.

Contracts of this nature affect the different rights and interests of the parties involved. While it is cautionary for brands and their ambassadors to reduce their understanding into binding, clear and defined terms, situations often arise that breed disputes, most often attributable to the fulfilment of obligations. In addition, this relationship creates three-dimensional rights: the issue of photographs being copyrightable; the issue of brand logos being trademarks; and the individual’s enforceable right to privacy and image rights. There is a need to understand these rights with a view to striking a balance between commercialisation and infringement or unauthorised exploitation. This is the crux of this article.

What are image rights?

A person’s most valuable asset is their image. It is an embodiment of their voice, signature, likeness, appearance, silhouette, feature, face, expressions (verbal or facial), gestures, mannerisms, photograph, illustration, electronic picture representation and any other distinctive characteristic or personal attribute of a person. The right of a person to wholly own these elements and attributes of their persona arms them with the means of protecting themselves from exploitation. This is the hallmark of image rights.

Commercialisation of image rights

Image rights have economic value, and over the years the wealth associated with a personality has become increasingly evident in the 21st century, especially in the era of social media. The economic value attached to these rights is often tied to the status of the individual. These individuals have in turn commercialised their rights over the years through the registration of their distinctive intellectual property rights, engagement with brands through endorsements, and, where necessary, through the institution of legal actions for infringement and exploitation of their rights by third parties.

For instance, Rihanna, in Robyn Rihanna Fenty & Ors v Arcadia Group Brands Limited (T/A Topshop) & Anor [2013] EWHC 2310 (Ch), sued Topshop for the unauthorised use of her image from one of her music videos on t-shirts sold by them. Richard Mofe Damijo (RMD), a Nigerian actor, instituted an action against Jumia stores in 2016 for the unauthorised use of his image on their social media platforms, even though the matter was amicably settled.

What is brand endorsement?

Brand endorsement is where a company or organisation decides to hire a popular personality (known as a brand ambassador) to represent its brand through the promotion of its products, to directly impact the sale of its products or services. These individuals, mostly famous and influential personalities, utilise their influence to help brands make sales by leveraging their social status and online presence. These collaborations boost the respective parties’ economic value and earning power.

For example, in 2016 Kylie Jenner signed a $1,000,000 deal to serve as a brand ambassador for Puma; Derrick Rose also secured a $185,000,000 endorsement deal with Adidas. In 2021, Erica Nlewedim signed an international deal as a brand ambassador for Swarovski Nigeria, to mention a few. Brand endorsement can take various forms, ranging from celebrity brand endorsement, goodwill brand endorsement, or promotional brand endorsement. Brand ambassadors assist the company by enriching the customer’s buying experience, increasing brand awareness and market reach, and protecting the company’s reputation.

Brand endorsement agreement — the essential clauses

A Brand Endorsement Agreement is like any standard agreement, and like any other agreement, it carries risks. However, these risks can be mitigated to ensure the brand ambassador is adequately protected from commercial and intellectual exploitation. The interests of brand ambassadors are often protected through the insertion of the following essential clauses.

Scope of agreement and obligation clause. This clause focuses on the scope of the agreement, stating what is expected of the brand ambassador — otherwise known as the obligations. The obligations to be performed by the ambassador must be clearly defined and itemised. For example, if the endorsement is a promotional brand endorsement, the platforms to be used by the brand ambassador should be clearly stated in the agreement; and if the brand ambassador is required to produce promotional content every two weeks, or three times a week, that too should be clearly stated in the scope or obligation clause.

Confidential information clause. The confidential information of the brand ambassador must be protected and must never be disclosed to any third party or unauthorised person. It is true that these individuals live public lives, but this does not mean they have waived their rights. A relationship of this nature is one of trust; brand ambassadors must ensure this clause is inserted to protect their rights from being unjustly exploited by the brand and third parties.

Dispute resolution clause. Commercial relationships can break down, leading to disputes between the contracting parties. A brand ambassador should ensure a dispute resolution clause is inserted, bearing in mind the importance of reputation, social status and goodwill, and the essence of the Brand Endorsement Agreement, which is to preserve a continued business relationship. Any dispute arising from the agreement should not become the subject of the “social media court,” as this does not aid in settling disputes — social media trials only complicate matters while damaging the reputation of both parties. The best way for parties to resolve disputes remains through mediation or other dispute resolution mechanisms as contained in the agreement.

Restrictive/exclusivity clause. The brand ambassador must ensure the terms of the endorsement agreement do not restrict them from engaging in other business arrangements in the sector or industry, bearing in mind possible conflicts of interest. It shows good faith and professionalism that, whilst the ambassador should not be unduly restricted, they should not be seen promoting the products and services of a brand in direct competition with the brand they have an existing agreement with.

Intellectual property clause. The relationship between a brand and its ambassador creates three-dimensional rights: the issue of photographs being copyrightable, the issue of brand logos being trademarks, and the individual’s enforceable right to privacy and image rights. There is therefore a need to clearly define what the respective rights of the parties are. This matters because, while social media content is an effective means of promoting a brand’s products and services, it is not risk-free — in the absence of a defined right of use, disputes often arise over what has actually been permitted. Brand ambassadors must therefore do well to define the extent to which brands can use their intellectual property commercially and for economic profit.

Duration. Like any other agreement, the term for which the Brand Endorsement Agreement will run should be clearly defined. It is advised that brand ambassadors sign short-term agreements, with an option to renew subject to mutual agreement of the parties, to ensure their interests are adequately protected. This also arms the brand ambassador with the power to renegotiate higher fees, particularly where the required obligations have been fulfilled under the prior agreement.

Conclusion

Due to the attractive pay that sometimes accompanies brand endorsements, brand ambassadors have often shown a lackadaisical approach to the proper negotiation of their endorsement agreements. This, in turn, has allowed brands to take advantage of the ambassador, whether by acting contrary to the scope of the contract, through blatant disregard of contractual obligations, or by not even having a contract at all. Brand ambassadors must therefore emphasise the need to have their obligations set out in an agreement, and must be proactive enough to have a skilled lawyer negotiate on their behalf, or review or draft the Brand Endorsement Agreement for them.