Hashtag Your Image Rights Away
I’ve written about brands using Instagram pictures to bolster their sales and as content before but that was in the context of Olapic (see post HERE). What I didn’t realise then was the extent of your loss of rights when you simply use a brand hashtag. Point 3 of the NYX Terms & Conditions seems to say that just by using #NYXcosmetics you are granting the brand complete licence to use your image as they see fit – anywhere. They can cut it, copy it, alter it, add filters, use it to sell product, promote their products or do pretty much anything at all with it – without crediting you if they don’t wish to do so – because by just using the hashtag you agreed to this.
Similar to this
I’ve checked with an IP lawyer (handy family member!) and what NYX is doing sits within the law – in other words, it is not illegal for them to state these terms. But, your moral rights under European law cannot be contracted out of – so if a brand takes your material and uses it or alters it in a way that is detrimental to your reputation OR they distort the content in an unacceptable way, you would have claim which is contrary to the NYX terms which suggest you don’t. But, it’s something that you should be aware of – check the terms before using a brand hashtag. I’ve popped a portion of the NYX terms at the bottom of this post.
Skinny Tan Ad Ban
So, finally the ASA has caught up with Skinny Tan after complaints brought by PZ Cussons (owners of St Tropez). The complaints are many but in a nutshell, the ASA finds that Skinny Tan DOES contain DHA like other tans (the implication was that it does not), it DOESN’T hide cellulite or make you look thinner (the implication from ST is that it does) and it ISN’T the UK’s No.1 Self Tan (as suggested by ST). The brand could not or would not provide sufficient evidence that the product as a whole could be termed ‘natural’.
Calvin Klein
In the last BBN, I told you about the company copying Calvin Klein fragrances and packaging – the Euphrates scent emulating Euphoria etc. They’ve now been ordered to pay Coty $6.5million.
Beauty Bakerie and Unilever
As part of its venture capital and private equity arm, Unilever has invested in Beauty Bakerie. Most big beauty corporations have these arms that talent spot young brands and take a stake in their future success at an early stage. On the one hand, it’s great for smaller, innovative brands to have access to experience and knowledge and practical points such as manufacturing, but on the other, it’s very poor for the consumer who will soon be faced with a beauty world that’s owned almost entirely by a handful of conglomerates. Competition is hot, too, because all the big names are looking for smaller brands to invest in.
INSTAGRAM BRAND TERMS
NYX PROFESSIONAL MAKEUP TERMS AND CONDITIONS FOR INSTAGRAM
THANK YOU FOR ENGAGING WITH NYX PROFESSIONAL MAKEUP ON INSTAGRAM.
IN ADDITION TO YOUR AGREEMENT TO THE INSTAGRAM TERMS AND CONDITIONS LOCATED AT HTTP://INSTAGRAM.COM/LEGAL/TERMS/, WE ASK THAT YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS WITH RESPECT TO YOUR ENGAGEMENT WITH THE NYX PROFESSIONAL MAKEUP BRAND ON INSTAGRAM. BY ENGAGING WITH NYX PROFESSIONAL MAKEUP, YOU HEREBY CONSENT TO THE FOLLOWING TERMS AND CONDITIONS (THE ‘TERMS’):
- AS STATED IN INSTAGRAM’S PRIVACY POLICY, ONCE YOU HAVE SHARED USER CONTENT OR MADE IT PUBLIC, THAT USER CONTENT MAY BE RE-SHARED BY OTHERS. NYX PROFESSIONAL MAKEUP SHALL HAVE THE RIGHT TO USE ANY CONTENT SUBMITTED BY USER USING A NYX PROFESSIONAL MAKEUP-CREATED HASHTAG AND SHALL HAVE THE RIGHT WITHOUT LIMITATION TO EDIT, STYLIZE, CROP, DIGITIZE OR ALTER THIS CONTENT AND USE YOUR CONTENT IN ACCORDANCE WITH THE RIGHTS YOU GRANT UNDER THESE TERMS AND OUR GENERAL NYX PROFESSIONAL MAKEUP WEBSITE TERMS AND CONDITIONS LOCATED AT NYXCOSMETICS.COM/TERMSANDCONDITIONS.HTML.
- NYX PROFESSIONAL MAKEUP IS NOT OBLIGATED TO PROVIDE YOU WITH ANY ATTRIBUTION OR CREDIT AND WILL NOT BE HELD LIABLE FOR ANY FAILURE TO PROVIDE YOU WITH CREDIT OR ANY ERRORS. YOU ARE RESPONSIBLE FOR COMPLYING WITH COMPLY WITH ALL THIRD-PARTY TERMS AND CONDITIONS AND NYX PROFESSIONAL MAKEUP IS NOT UNDER ANY OBLIGATION TO MONITOR OR REMOVE ANY CONTENT FROM INSTAGRAM OR ANY OTHER SOCIAL MEDIA SITE.
- YOU WILL RETAIN OWNERSHIP TO YOUR CONTENT INCLUDING THE COPYRIGHT. YOU GRANT NYX PROFESSIONAL MAKEUP AN IRREVOCABLE, NONEXCLUSIVE, PERPETUAL, ROYALTY-FREE, WORLDWIDE, TRANSFERABLE AND SUB-LICENSABLE LICENSE AND RIGHT TO USE YOUR CONTENT THAT USES A NYX PROFESSIONAL MAKEUP HASHTAG ON OUR SITE, ANY ASSOCIATED NYX PROFESSIONAL MAKEUP SOCIAL PAGES (E.G. FACEBOOK) OR ANY ASSOCIATED MARKETING MATERIALS FOR THE NYX PROFESSIONAL MAKEUP BRAND. YOU HEREBY RELEASE NYX PROFESSIONAL MAKEUP HARMLESS FROM ANY AND ALL ACTIONS OR CLAIMS OF WHATEVER KIND OR NATURE, ARISING OUT OF OR RELATED TO THE USE OF THE CONTENT OR USE IN ANY COMPOSITE FORM OF YOUR NAME, IMAGE OR LIKENESS AND/OR THE CONTENT.
IF YOU BELIEVE ANY MATERIALS INFRINGE A COPYRIGHT, YOU SHOULD PROVIDE US WITH WRITTEN NOTICE SENT TO THE FOLLOWING CONTACT: DMCAAGENT@US.LOREAL.COM.
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