Hashtagging Away Your Rights: Privacy And Publicity Rights In Social Media

The fashion industry is finally loosening its buttons—several decades and a few billion dollars in advertising later, retailers are moving away from using high-priced models and exotic locations to lure customers. Instead, many brands are promoting their designs by relying on every day images of existing customers wearing their products. Consumers- specifically, young women- are flaunting their personal style through social media platforms and retailers are embracing this outlet as a means of engaging customers. Recently, a Wall Street Journal article1 highlighted this new phenomenon, explaining that retailers' "embrace of real-people photos feeds the needs of young consumers for connection." Candid street style is quickly becoming professionally-styled advertising's more popular younger sister, and retailers are adjusting their business strategies to catch up with consumer behavior.

To do so, brands are capitalizing on social media features that allow users to self-categorize photos and posts. When a consumer takes a photo of herself wearing a brand-name item, she can use a hashtag to identify the retailer in the caption. The photo is subsequently added to an archive of others tagged under that category. The "hashtag" is a form of metadata tag that marks keywords or topics and helps users filter through the enormous volume of...