The Intellectual Property Behind “Real Women” Advertising

By: Dana Sisk*| Staff Writer 

https://americaneagleoutfitters.files.wordpress.com/2015/01/aerierealpoem.jpg?w=672&h=672

From blog.ae.com

During the past decade, there has been a steady increase in the number of companies that feature untouched images of “average sized” women, rather than the highly edited images of tall and slender supermodels.  This movement toward promoting body positivity and positive body image in young women has garnered a lot of praise throughout the advertising and modeling world, and more and more companies are jumping on board.

Aerie, the lingerie brand owned by American Eagle Outfitters, recently launched a campaign in partnership with the National Eating Disorders Association. This campaign featured a plus-sized, unedited model in the company’s swimsuits and lingerie. The purpose of the campaign was to promote awareness of eating disorders during National Eating Disorders Week and to promote positive body image in young women.  This is not the first time Aerie has used “real” women in its advertisements.  Two years ago, Aerie launched its #AerieREALcampaign, featuring completely untouched images of young women.

Other companies, like Dove, have also made an effort to feature relatable, everyday women in their advertising campaigns. Dove launched its “Real Beauty” campaign in the early 2000s to promote the same ideas of body positivity and self-image. Other companies are following suit. Sports Illustrated and Christian Louboutin have also started featuring curvy, plus-sized models in their advertising campaigns. So far, these ads have attracted mostly positive feedback.  Aerie reported a significant increase in sales since launching its #AerieREAL campaign, and it has attracted a huge new following in the 15-25 year old age bracket. The head of the company, Jen Foyle, stated that the social media interaction and body positive messages that the company posts have garnered a huge following.  Clearly, body positive advertising is gaining ground and making a positive social impact, however, this type of specific advertising also raises intellectual property questions.

For example, can Dove and Aerie run their individual campaigns without running into IP conflicts?  These companies could invoke trademark law to protect their individual campaign slogans because “a trademark is a word symbol, or phrase used to identify [and distinguish] a particular manufacturer or seller’s products.”  Since “AerieREAL” and “Real Beauty” are distinctive of the Aerie and Dove brands, these phrases can be trademarked.  Additionally, the companies could use copyright law to protect their printed advertisements and television commercials because these are defined as “pictorial and graphic” works under copyright law.  However, generally utilizing plus-sized models and body positive messages cannot be trademarked or copyrighted because the general ideas or methods behind these advertising campaigns cannot be trademarked or copyrighted. The advertisements and campaigns of these companies are different enough that they do not infringe on the rights of the other campaigns. For example, Aerie is focused on not photoshopping or editing their models, while Dove is focused on accepting all women as beautiful.

Copyright and trademark law is important to protect the creative advertising rights of these companies, however, monopolizing the idea of body positive advertising is not protected.  It would be detrimental to the social progress that has been made through these advertising campaigns if only one company was able to monopolize body positive messages.  Sharing the idea of body positivity is an asset to these companies and consumers because it boosts sales and encourages young women to love themselves even if they do not look like the supermodels in typical advertisements.

 

Dana Sisk is a second year law student at Wake Forest School of Law. She has a bachelor’s degree in International Business from Auburn University. She hopes to practice securities and international business law after graduation. She is also a professional equestrian in her free time, and enjoys travelling and yoga.