Have you ever wondered how celebrities like David Beckham or Rihanna manage to keep their images and names from being used without their permission? It's a complex world of 'image rights', a crucial yet often misunderstood aspect of media law. In this post, we'll unravel the complex tapestry of legal protections that shield a celebrity's image in the UK, breaking down the jargon into understandable insights.
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.
At its core, 'image rights' refer to an individual's exclusive claim over their personal attributes - their name, appearance, or even signature phrases. Globally, these rights are often termed as 'personality rights' or 'publicity rights', derived from the notion that an individual should have authority over how their persona is commercially utilised. Jurisdictions including the United States, Canada, and much of Europe (Germany and France especially) have well-established rights of publicity.
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In the UK, the situation is trickier. Under English law, celebrities must stitch together a mosaic of different legal principles to protect their image. This includes intellectual property rights, confidentiality, advertising standards, and data protection laws. The most commonly used tools? Trade mark registrations and 'passing off' claims.
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."
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. In other words, the trade mark identifies the source of the good or service in question ("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 the celebrity. 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 Benedict Cumberbatch himself (or someone properly licensed by him).
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).
Topshop's shirt, and the original image, which was taken during the "We Found Love" music video
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?
The challenge of protecting a celebrity's image in the UK lies in navigating these diverse legal avenues. As Dr. Dev Gangjee of Oxford University points out, the evolving nature of celebrity culture and law means these issues are becoming increasingly relevant, not just for the stars but for all of us in this age of omnipresent social media and surveillance.
In a world where our images can be captured and shared in an instant, understanding and applying these legal protections becomes vital. 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. By dissecting these complex legal concepts into more accessible information, we aim to shed light on the fascinating and ever-evolving landscape of image rights in the UK.
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