Famous movie stars and athletes earn big bucks beyond their day job at the studio or stadium. Their image can be used to in a variety of commercial contexts, ranging from endorsements and sponsorships, to merchandising and deals with fashion brands and magazines. Marketwatch reports that on average, signing a celebrity correlates to a rise in share prices, and a 4% increase in sales. After Chanel signed Nicole Kidman in 2003 to promote their N°5 perfume, global sales of the fragrance increased by 30%.
Celebrities today spend a huge amount of time and energy developing and maintaining their public image. But here in the United Kingdom, “image rights” have never been clearly stated in law. So how do celebrities protect and control the publicity associated with their name, image, and brand?
Image rights are an individual’s proprietary right in their personality, and include the right to prevent unauthorised use of their name, physical or style characteristics, signatures, or slogans that are associated with them.
Image rights are also known as “personality rights” or “rights of publicity.” This concept comes from the idea that each person should be able to control how his or her “persona” is commercialised. Jurisdictions including the United States, Canada, and much of Europe (Germany and France especially) have well-established rights of publicity.
In contrast, under English law an individual must rely on a patchwork of legal doctrines to protect their image. Breach of intellectual property, confidential information, advertising standards, and data protection are some examples, with trade mark infringement and claims of passing off being most common.
Trade mark protection is considered the most practical way for a celebrity to earn money from the commercial use of their image, and prevent others from making using it without permission. David and Victoria Beckham have trade marked names, as do Jay-Z and Beyoncé’s children, Ivy Blue, Sir, and Rumi. Donald Trump has trade marked the phrase, “make America great again.”
Somewhat ironically however, a person’s fame can prevent successful trade mark protections. A trade mark is literally just a mark, word, phrase, or label used to identify a product, service, or brand as being owned by a certain company or person (“source identifier”). The average consumer may simply see the use of a celebrity’s name or image as an indication that the product is about the celebrity, as opposed to being from a particular source. For example, a poster or coffee mug featuring the name and photo of Benedict Cumberbatch may simply be seen as a Benedict Cumberbatch poster or coffee mug, rather than a poster or coffee mug produced by a source licensed by Benedict Cumberbatch.
Passing off is a type of tort or harm which damages the magnetism or “attractive force” of a celebrity’s reputation. This is particularly relevant when a celebrity is falsely reprsented as having endorsed a particular product, service or brand. In 2012, clothes retailer Topshop sold a t-shirt with Rihanna’s image on it. The image was a photograph taken by an independent photographer during a music video shoot. While Topshop had a license to use this photo from the photographer who took it, Topshop did not have a license from Rihanna herself. Rhianna successfully sued Topshop on the grounds that using her image without her approval was an act of passing off (Robyn Rhianna Fenty v Arcadia Group, t/a Topshop).
It is important to note that this case reinforces the position that there is no “image right” recognised in English law, and that it is not an infringement just to use someone else’s image without their consent. Rihanna’s success hinged on very specific facts: the image in question was associated with her Talk That Talk album cover; she had previous commercial relationships with Topshop; and she was a recognised fashion icon. So while Fenty v Arcadia Group confirmed that a passing off claim may prevent unauthorised use of a celebrity’s image, the court’s judgment explained that the outcome had been “borderline.”
The two most practical ways of protecting a celebrity’s image – trade mark and passing off – repeatedly fail to establish a genuine and singular “image right.” Does this demonstrate a gap in the law that requires new legislation? In our celebrity-obsessed society, legal protections are likely to be further developed in court as high-earning sportsmen and film stars file lawsuits to prevent others from using their image without permission. Is it sufficient for these individuals to simply test out a wide variety of avenues by which to explore a claim? Dr. Dev Gangjee of Oxford University, whose publicity rights seminar I recently attended, is one of a few researchers who are attempting to provide some eperical data in respect of these questions.
Before looking into this tangled web of image rights, I dismissed the concern as somewhat irrelevant to anyone who isn’t a celebrity. But having researched the issue a bit further, I’ve come to the realisation that these protections (or lack thereof) are relevant not only to the rich and famous, but to all of us. In a world of pervasive social media and surveillance, we should all be able to regulate and profit from our own unique identity as we choose.