Tips for sewing bloggers: Lawyer Rachel Fischbein on copyright, privacy and giveaways

Law and fashion may seem like an incongruous combination but San Francisco lawyer Rachel Fischbein has had an interest in both since high school. Back then she was part of a group of students who picked apart donated clothes, sewed them into something new and then donated the refashioned garments to a women’s shelter. Rachel was also on the high school mock trial team. She studied fashion marketing in college and then went on to law school at Santa Clara University.

Rachel opened her law firm, Law On The Runway, right out of law school. “My clients are fashion bloggers, fashion models, social media mavens, lifestyle personalities, brands, fashion entrepreneurs, and pattern makers,” says Rachel.

I met Rachel this summer when she gave a fascinating presentation on privacy and copyright law at an attorney luncheon. She discussed intellectual property rights in the fashion industry and touched on the intriguing topic of privacy law and wearable technology (how do you handle user data collected by wearables – everything from heart rate to GPS location?), and the FTC regulations of social media and blogging.

As soon as her talk was over, I asked if I could interview her for my blog. I thought she’d have a great perspective for sewing bloggers. And to my great pleasure, she said, “yes.” Her firm has a cool logo, doesn’t it?

In our conversation, I presented her with several scenarios that will be very familiar to sewing bloggers:

1. If you get a sewing book or pattern for free to review, do you need to disclose that fact?
2. Can you post photos from other blogs or publishers without permission?
3. Can you photograph a sewing pattern and post it on your blog?
4. What do you need to disclose if you host a giveaway on your blog or social media account?
5. Do sewing bloggers need a privacy policy posted on their blog?
6. What do you need to know if you want to have music in the background of your video or vlog?

Then I created the list of tips below based on Rachel’s answers. I’m not a lawyer, so you’re getting my journalist’s interpretation. I wrote the sentences that are in bold type and the edited comments that follow are Rachel’s. Additional comments in italics and [brackets] are mine.

If you’re new to blogging or if you don’t have a big audience, you may think you don’t need to worry about any of these things. But should you get unexpected attention and become well-known, you could run into some expensive legal problems so it’s good to be aware of these tips for sewing bloggers. Also, this post is not comprehensive. I picked a few of the things that I see most often. Some of these tips may be familiar to you but you may be surprised by a few of them.

I used to work for a legal magazine and lawyers always include a disclaimer. So here’s Rachel’s: “This was an informational interview not to be used as legal advice. Consult an attorney before drafting any agreement or using other people’s intellectual property.”

Now without any further ado, here are six tips for sewing bloggers on copyright, privacy, and giveaways:

1. If you get something for free to review, such as a sewing book or a sewing pattern, you must disclose that fact.
   “Under the Federal Trade Commission’s (FTC) regulation on endorsements, you must disclose to the readers that you got a free copy,” notes Rachel Fischbein. “Native advertising is a product review and you are receiving a benefit, a free copy.”
   ***[You’ll see many sewing bloggers mention that they received the book/pattern for free. It’s important to mention this up front rather than at the end of the post. In my review of Basic Black, a Japanese sewing book, I mentioned in the second paragraph that I got the book for free and that I was not being paid to review the book. Here’s a link to the FTC’s Endorsements Guides.–CS]
2. Do not post other people’s photos without permission – whether they are photos you take of a two-page photo spread in a sewing book or photos of a sewing blogger’s completed garments.
   “Talk with the publishers about which images can be used from the book, whether or not you can snap photos from the book yourself or if they will send pre-approved images that you can post,” says Rachel. “Usually publishers are thrilled to have organic promotion. The same thing goes with apparel designers but you want to ask for permission. There are fair use rights for copyright. If you are just trying to identify the work, not the work itself, show a photo of just a part of the book, like the cover. You want to be respectful of other people’s work. If a publisher has gone through all the time and effort, they don’t want the book to be reposted online. The photographs of the completed garment are owned by the blogger who posted it. They have a copyright on it. Technically you should ask the blogger if it’s OK to post. Ask for right of attribution. Photo taken by ____, this is her work.”
   ***[You may think you’re doing someone a favor by promoting their event or blog so you can just use their photo but it’s not your photo so ask for permission. It’s also a matter of courtesy. Don’t assume anything. For example, last week, I asked Joie, Britex Fabrics marketing maven, if I could use the image (four photos of the designers) the store was using to promote the PROJKT Maiden Lane fashion show. I’m hosting a giveaway for a ticket to the event on my blog and I was promoting the show. I wanted my post to go live the next day Britex needed to get permission from each of the designers in the photos so I couldn’t use it.–CS]
   
3. Be careful of how much you reveal of a sewing pattern.
   “You can’t reproduce any work or make copies,” says Rachel. “If you’re trying to show a pattern you’re using, take a small photo of part of the pattern but do not give away the value of it. If you buy a book and there’s a pattern in it and you post a photo of the [entire] pattern, you’ve likely infringed on the copyright of that publisher.”
4. If you host a giveaway on your blog or on Instagram or other social media, you are holding a contest or a sweepstakes – and they each have different rules that you need to disclose. [Yes, this was a bit of  shocker to me.-CS]
   “You need to figure out if the giveaway will be a sweepstakes,” says Rachel, “picking a winner at random, or a contest – picking on the basis of skill for an entry. A contest of skill could be choosing one winner based on a thoughtful response, for example, explaining their desire for the book. If [the winner is chosen randomly], it must be easy to enter the giveaway – a quick ‘like’ or retweet for a contest entry. If you require anything that takes skill, time, or money, then you’ve moved into the lottery level. Lotteries are illegal. When it comes to giveaways and sweepstakes – you need to consider state and federal rules.”
   ***[Note: Every state has its own rules, which means all 50 states, 50 sets of rules.–CS] “Ask the publisher of the book to provide rules or guidelines for your giveaway,” says Rachel. “Ask them: ‘How are we going to create the rules of the giveaway? There are certain disclosures that must be made, for example, people’s odds of winning. Contests require a set of rules. Can you provide a set of rules for the contest?’ Then you can link to the rules. It would be good to have advice of an attorney or ask the publisher to provide an approved list of rules from the publisher’s attorneys. Contests generally have shorter rules as opposed to sweepstakes.The same rules apply [for giveaways on] Instagram, Facebook. Create a shortened bitlink that will go to the rules.”
   ***[Note: Rafflecopter provides contest rules as a courtesy to people who use the service but they are careful to say that you are responsible for complying with the law. I used Rafflecopter for my contest to win a ticket to the PROJKT Maiden Lane fashion show.–CS]
5. If you collect any personally identifiable information, such as someone’s email address, you must post a privacy policy. 
   “If you have a ‘contact us’ form, a newsletter sign-up form, a contest form, or if you collect emails from people who comment,” notes Rachel, “you are collecting personal information and you must have a privacy policy. Anytime anyone gives personally identifiable information on your website, you should have a clearly stated privacy policy posted on first page of your website. The privacy policy explains what you do with people’s personal information, how you store it, whether you are tracking people’s cookies, whether there are web beacons involved. Terms of use – a contract between you and your users – are not required.”
   ***[See Rachel’s post on legal issues for fashion bloggers, particularly last section on privacy policies. I was surprised that commenting or a “contact us” form meant you needed a privacy policy. But it makes sense because you are collecting emails. If you don’t have a privacy policy on your home page, do it now. I added a privacy policy when I started my C Sews newsletter this summer because Mailchimp requires a link to a privacy policy. Here’s my privacy policy, which you can also see as a footer link on my home page.–CS]
6. If you post a video or have a vlog, pay attention to your background music.
   “You want to use music that you have a license for,” says Rachel. “There are websites that allow you to download pieces of music that are rights-free music or music that you can get a license for.”
   ***[Note: If you use a band’s music in the background and your video goes viral, you could be sued by the band or their music label for using their music without permission.–CS]

Thank you, Rachel for taking the time to chat with me about these issues! Rachel is at Burning Man (how cool is that?) so she has not read this post yet. She doesn’t take any electronic devices with her to Burning Man because of all the dust and sand. So I’ll close by repeating Rachel’s disclaimer: This was an informational interview not to be used as legal advice. Consult an attorney before drafting any agreement or using other people’s intellectual property.