At the end of 2017 fashion commentator, publisher, educator and trend forecaster Lidewij Edelkoort presented, during a seminar at The New School in New York, the trends for the S/S 19 season. In that occasion Edelkoort claimed 2019 would be marked by a focus on real design skills and on strong professional designers, while influencers would start disappearing.
At the moment influencers do not seem in danger of extinction, but there are currently cases that may be shaking their roles and that regard not just ethical issues that emerged in the last few years (from disclosed, undisclosed and fake sponsored posts to the questionable behavior regarding a brand paying an influencer to post negative reviews about a competitor's product), but also legal matters.
In October 2018 PR Consulting ("PRC") filed a suit against actor, model and influencer Luka Sabbat in a New York state court (the case is PR Consulting, Inc., v. Luka Sabbat, 655382/2018 (NY Sup)) for failing to keep up his obligations of influencer as stated in a contract dated September 15, 2018.
Sabbat signed a $60,0000 agreement with PRC to promote Snap Inc.'s camera-equipped Snapchat-powered Spectacles glasses.
According to the agreement he had to create four unique posts on Instagram (one Instagram Feed Post and three Instagram Story posts) during the S/S 19 fashion shows that took place in September and October 2018. Sabbat was supposed to post two stories from New York, and then also post from Milan or Paris, and was also expected to pose for pictures wearing the glasses in public during the shows in the European fashion capitals.
He accepted $45,000 up front, but then only posted one Feed and one Story. Besides, Sabbat did not submit the post to PR Consulting for approval before he posted it and did not provide analytics (reach, comments, likes, and views) to PRC for his first Instagram Story (as required by the contract) within 24 hour from posting.
So, claiming the influencer had not carried out his duties, PRC sued him for breach of contract and asked to return the advance money and pay interest, consequential and incidental damages and the legal bill as well.
You may argue that breach of contract is not so rare among celebrities who fail to promote a brand or a product (the list includes the Kardashian sisters, sued by Hullair Capital Management in 2016 for failing to market their Kardashian Beauty line). Things are different, though, for what regards the Sabbat case: while there are litigation cases between companies and influencers that we may not know of, this is the first time an influencer is sued for breaching a contract linked with an Instagram campaign and for "failing to influence" (yes, it does sound like a good title for a mysterious dystopian novel "The Influencer Who Failed to Influence"...).
Snap Spectacles Influencer ... by on Scribd
In a way this is a lesson for influencers to take things more seriously (well, they claim this is a serious job and they're probably right if we consider the fact that they are supposed to drive product sales), but this is also a lesson to learn for brands willing to work with influencers (Calvin Klein after the fall of Raf Simons?).
Yet the case opens up a new dilemma: in a previous post we analysed new e-commerce regulations in China, but it looks like contracts between brands and influencers will have to be regulated by new laws as well that go beyond the Federal Trade Commission rules that regard disclosing advertised posts. Some companies are protecting themselves from lawsuits for breach of contract using prorated payment terms (an influencer gets paid a certain amount of the agreed total after each post rather than a large up front sum, that sounds like a reasonable decision).
But there are other issues and standards that should have to be included in a contract with influencers (issues that proper law may regulate better) - from rights and copyrights to the possibility of a brand to use that specific content in another medium (printed press, TV etc), and rights to alter, edit or Photoshop a specific photo or video and so on. Besides, a contract should also indicate how many people a company expects an influencer to reach: accusing somebody of "failing to influence" is indeed a general statement as we don't know how many people the company expects to reach and how many items they expect to sell (online? in a brick and mortar store?). In a nutshell quantifying the failure to influence may be a tricky process.
That's why Sabbat's legal team asked the court to dismiss the case, claiming there are no sufficient facts showing that a violation has occurred and that there is no necessary party to the litigation (Snap decided not to get involved in the decision to sue Sabbat; the company has actually got bigger financial issues as their Spectacles didn't go well since they were released and a lawsuit and the bad publicity deriving from it would just mean more expenses to them; at the same time while Snap is the client it's PRC who did the contract with Sabbat, so the influencer may not have a point here). Sabbat may be right if his contract doesn't include any references about the number of people PRC expected to reach via the influencer and the items Snap expected to sell.
In a way PRC/Snap Inc got more publicity with the lawsuit than with the influencer's posts, so, who knows, maybe the parties will reach an agreement or the court may just dismiss the case (but in case it doesn't happen it will be intriguing to see the outcomes as they will prove useful for similar cases that may happen in future). Will "failing to influence" become another legal issue next year after the multiple yearly copyright infringement cases so popular and trendy in the fashion industry? Time will tell, but hopefully Lidewij Edelkoort's prophesy will become true and we will see not just zero lawsuits involving brands/fashion houses and influencers, but also a decrease in the actual number of influencers.
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