UNDERSTANDING IMAGE RIGHTS IN THE UK - a must read for every artist.
By Oviri Clarke
Celebrities in contemporary culture have been associated with luxury, influence, wealth and greatness. This resulted in superstars being highly valued and the celebrity image being treated as a commodity. This value has led to the exploitation of the name, likeness, voice, image and other characteristics of famous people; i.e. Rihanna. In 2015, Rihanna successfully went head to head with TopShop in a legal dispute in regards to an unauthorised exploitation of a t-shirt with her image on it. The image was associated with her Talk that Talk album. She was able to win her case using the common law argument of passing off. Countries across the globe have recognised the exclusive personality right. Therefore, celebrities have control over their images and protect them from being used commercially without their consent in advertisement campaigns and endorsements. Despite the Rihanna v TopShop case, countries like the United Kingdom fail to acknowledge the right to one’s image.
You may ask, what exactly are image rights?
Image rights are mostly referred to as “the right of publicity” in the USA and elsewhere it is called “personality rights”. To the ordinary person a celebrity could be recognised by different features, such as their signature, their name or facial features and as for some celebrities they can be recognised by specific features of their personality, which makes up the celebrity. For example, Michael Jackson can be recognised by his speaking voice, the moon walk and his unique style.
The official website for the intellectual property office in Guernsey gives a brief description of image rights. The description reads: “Image rights are the expression of a personality in the public domain. The provision of image rights in law enables the definition, value, commercial exploitation and protection of image rights associated with a person.”
Ways to protect your image right in the UK:
Passing off does not offer a full protection of image rights because the law only protects those that have a significant amount of reputation or goodwill, and where the individual’s case involves misrepresentation and damage from that misrepresentation. For example, the Spice Girls (Halliwell v Panini SpA) had applied for an injunction to prohibit the sale of an unauthorised collection of stickers which had their names and photograph brandished on them. The application failed because the court failed to believe that consumers would be confused on whether the stickers were unofficial or not and implied that the ordinary public would not be confused. A successful passing off claim would be the Rihanna case mentioned above.
Breach of Confidence:
The common law tort of breach of confidence has been a doctrine developed by the implementation Article 8 of the European Convention on Human Rights (ECHR) via the Human Rights Act 1998 in the UK. Article 8 of the convention enables the right to privacy. This law effected how celebrities could protect their image by enabling a protection where the unauthorised use of a celebrity's image invaded their personal privacy. In the case of McKennit v Ash, the court prevented further publication of parts of a book, which contained confidential information about the famous recording artist, Loreena McKennit. The book was written and published by a former friend of McKennit and the information provided in the book was given to the friend in confidence. It was stated that the information revealed in the book infringed Mckennit's rights under article 8.
Data Protection Law:
Individuals can even seek compensation through the data protection law. Famous claimants, such as, Naomi Campbell (Campbell v MGN Ltd) in the past have been awarded the compensation of £3,500 where there was breach of data protection laws by third parties using their image. Data protection could be said to be a subsidiary to claims regarding confidentiality.
Signatures, names and images are able to be registered as a trademark, so it is not surprising that many superstars seek protection of their image rights by trade marking their brand. Trademarking one’s name has progressively become common by celebrities, often in order to prevent the commercial use of one’s name or image in relation to goods and services.
However, this form of protection has its conditions which could prevent celebrities from obtaining registration for their name. If a celebrity’s brand name, image or signature is considered to not be distinctive or is too descriptive then trademark law would be unable to protect it. The issue of distinctiveness or description mostly arises where the trademark is sought-after in relation to goods and services, such as memorabilia that carries a famous person’s name or image. The 1999 Elvis Presley trademark case highlights this issue of trademark law being limited in its protection of image rights. The case involved the registration of the rock and roll icon Elvis Presley's name. On behalf of Elvis Presley, there was an application to register the marks “ELVIS” and “ELVIS PRESLEY” and the signature “Elvis A. Presley”. However, it was held that the marks excluding the signature mark “had very little inherent distinctiveness.” The courts also added that the addition of the surname “Presley” confirmed the descriptive and non-distinctive nature of the marks, which is why the courts denied the registration of the marks.
Image rights across the globe:
Many countries and cities have acknowledged that celebrities’ images hold enough value to be protected. For example, France, The Bailiwick of Guernsey and parts of the U.S. are known for having detailed laws and provisions that provide protection to ones persona.
US - In California the law allows for the right of publicity to be inherited, meaning that the image right would pass on to another when the famous person dies. In New York the Civil Law prohibits the unauthorised use of the name or picture of a person for commercial advertising or trade.
France - In France image right is referred to as “du droit á l’image”. The right in French law is mainly founded upon the protection of privacy. French courts have established that – “[a] photographed person is entitled to compensation only if his or her image is reproduced in an attempt to ridicule them or the caption of the photograph is unpleasant or their features are used for commercial purposes from which it can be inferred that the person endorsed for free or for a fee, the advertising use of their image.”
The Bailiwick of Guernsey - Guernsey is the only place in the world to release an official registration for a “personality” to register its, name, images, signature, voice, silhouette, expressions (verbal or facial) and many more other features of one’s persona. This method of registration is dissimilar to other traditional intellectual property methods. Registration is granted to individuals, groups, joint personality's, legal entity and fictional characters, and once registered, the personality gains a property right to its image for 10 years from the date of registration, which may be renewed for another 10 years. This property right means that the image right can be transferred by written assignment by or on behalf of the registered proprietor.
Fundamentally it is important to protect your image right. It is clear a celebrity’s persona or image has economic value and musicians must be aware of being commercially exploited. Hopefully, in years to come the UK will be able to establish a much stronger law that could protect image rights thoroughly.