You Are Too Beautiful – Photoshop and Advertising

An article in Fashionista this week raises a provocative issue. Is it false advertising to use digital imaging software, such as Adobe’s Photoshop, to enhance photographs of people modeling cosmetic products and services, making the models look even more beautiful than they do in real life in order to sell these products and services?

According to the Fashionista article, Seth Maitlins, a citizen advocate and former marketing executive from Los Angeles, with the help of the Eating Disorders Coalition, has spearheaded the introduction of a bill in Congress called the “Truth In Advertising Act of 2014,” H.R 4341.

The legislation would direct the Federal Trade Commission (“FTC”) “to submit to Congress a report on the use, in advertising and other media for the promotion of commercial products, of images that have been altered to materially change the physical characteristics of the faces and bodies of the individuals depicted.”

Determining whether there is truth in beauty is a question as timeless as the Greek philosophers, the Pre-Raphaelite painters, and on some level just about all of us in one way or another in our everyday lives. In a contemporary sense, we now have Photoshop and other technology to manipulate our perception of reality.

Photography is an inherently selective art form. Since the discovery of the camera obscura, photographers have used mastery of light to produce different visual effects. Airbrushing and the magic of the darkroom involve ample amounts of design and process. Models use make up, plastic surgery, and Botox – or just tell their photographers, “Shoot my good side!” The whole 360 degree truth cannot be captured in a single frame.

In the United Kingdom, the Advertising Standards Authority has successfully had advertisements removed from billboards and other modes of distribution for having misled the public. For example, L’Oreal’s advertisements for an anti-wrinkle cream featuring actress Rachel Weisz were withdrawn after a complaint from a Member of Parliament. The Authority found that the advertisements “misleadingly exaggerated” the product’s effect on skin.

If advertising does deceive customers into believing that the cosmetics can work wonders when they do not, logically such deception should be treated no differently than, say, a real estate advertisement depicting a mansion where in reality there is only a Florida swamp.

Would advertising disclaimers stating that the model’s image had been manipulated be sufficient or would a statement that “Your results may vary from the images in this advertising” help explain, or just seem clumsy or even unintentionally comical? Like in the old fur coat ads, “Please don’t disclaim me because I’m beautiful.”

As the poet John Keats wrote in concluding “Ode on a Grecian Urn,”

Beauty is truth, truth beauty, – that is all

Ye know on earth, and all ye need to know.

In other words, while “truth” in advertising is altogether admirable – even necessary — and may require new regulation, sometimes the questions in this realm are best left unanswered.

In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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