Edith Had It Easy: How Costume Design Collides with the Law in Technology and Social Media
The intersection of technology and media has become a virtual Wild Wild West.
As the lightning-speed evolution of the latest tech innovations creates seemingly limitless opportunities for those savvy enough to understand how to exploit them, costume designers are faced with a fresh set of challenges. As with any new world, the rules are undefined, but as they come into focus, it becomes clear that an innocent misstep can carry legal repercussions. As our Guild works hard to raise the visibility of the collective membership, and as more and more of our members are becoming public figures in their own right, and it is crucial to recognize that with increased exposure comes with increased vulnerability. Understanding how these technological tools can be applied, along with their potential pitfalls, is a necessary conversation for costume designers and illustrators to have in order to anticipate potential liabilities.
Prior to the Shepard Fairey lawsuit over the Barrack Obama “Hope” poster being finalized in 2012, the general belief was that adapting or interpreting an existing work was not a violation of intellectual property laws. For example, if photorealistic illustrations were required for a project, it was considered acceptable, and, more importantly, legal for the designer or illustrators to use actor headshots or publicity photographs as a reference if the source was obviously altered, by redrawing or digitally painting over it. The verdict of the case established that stylizing an image is not enough to sever its connection to the original source
Costume sketches, are being used for far more than construction purposes and are increasingly being seen in more types of media from books to popular websites. Designers should assume that any artwork created for a production will eventually become public, and that rights to any references used for the sketch need to be approved, prior to use. Some Illustrators sidestep the issue of clearances by asking to take their own reference photos during fittings, having the studio provide approved images, or working from body scans.
There will be times when it is necessary to work with references from other sources. Because the laws surrounding intellectual property are particularly complex, securing clearances is best left to parties with know-how in the field. The safest route for the costume designer or illustrator is to have the legal team from the production company or studio handle securing rights.
Designers of all stripes, along with the rest of the entertainment industry, have successfully taken on social media sites as marketing tools for both their own brands and projects. Crew and cast alike on popular shows like Scandal, Sleepy Hollow, and Castle treat their viewers to a running commentary of their time on set and in the workroom, offering a deeper insight into what goes on behind the scenes. Costume designers interact directly with fans, fielding questions on everything from the provenance of a fabulous article of clothing, to their thoughts on the creative process, and their own professional paths. In late spring of this year, the sci-fi blogs collectively swooned when the first production images from one of the sci-fi tentpoles came, not from paparazzi shots of the production, but from director’s own Twitter account.
More and more, media-savvy producers are recognizing how this can benefit a project’s brand. However, the electronic intimacy created between the creators and the audience becomes a double edged sword, blurring the lines between brilliant marketing and a fireable violation of the Non-Disclosure Agreement.
On projects of any size or scope, it is best to be crystal clear with what the production’s expectations are. Some projects will want all information kept on lock down, with even the mention that you’re working on the project prior to release considered unacceptable, while others will delight in everyone on the team taking part in building momentum for the project. Know beforehand the tone of your project, and always beware of giving away a spoiler.
The electronic group The Postal Service got its name from its members’ production process: instrumental tracks and vocals were edited and layered on digital analogue tapes sent back and forth via the US Mail. Had their first album been recorded today, the collaboration might have been titled Dropbox or Drive. File sharing services are another piece of technology quickly becoming an industry norm. The benefits are substantial: because they work like a virtual hard drive, subfolders and all, they’re a far more organized alternative to sending individual emails, and, with custom settings on synchable apps, files and pictures can be shared from a smartphone in real time. As it becomes more and more rare for all the pertinent decision makers to regularly be in the same room, or sometimes even the same continent, the option to share large chunks of data so quickly saves everyone involved inestimable amounts of time and is key in clarifying communication.
Something perceptive designers have realized is that posting a document in a shared file, despite required log-ins and encryption technology, is can be, in a worst-case scenario, only slightly less secure than posting online. Once the file is uploaded, especially when someone else controls access or sharing permissions, there is very little that can be done to keep another party with access from passing the file on, accidentally or otherwise. Protecting files with a password acts as a safeguard, but it’s not foolproof. In the case of fitting photos, some designers opt to protect their actors, their likeness rights, and, potentially, plot lines by either cropping or digitally covering the actor’s face on shared photos, or taking shots with the actor’s face turned away.
Each era has had its own set of challenges. While our artistic ancestors Edith Head, Helen Rose, and William Travilla might be envious of some of the current tools that streamline and expedite our process, we know them to be a blessing and a liability.
In order to navigate today’s electronic wilderness with confidence one must keep in mind that asking for forgiveness will almost never be easier than asking for permission.
Written by Christine Cover Ferro