3 October 2013Trademarks

Celebrity image rights: a bridge too far?

On October 2, a panel of lawyers, a journalist and actor Larry Lamb assembled at accountant BDO LLP’s London headquarters to discuss the impact of Guernsey’s image rights register and debate whether celebrities need added image protection.

It’s a timely discussion, with Labour party leader Ed Miliband believed to be taking legal action against UK newspaper The Daily Mail after it called his father, Ralph Miliband, “The Man Who Hated Britain”.

Ralph Miliband died in 1994, so under UK law the Mail’s article cannot be considered libellous, though as panel chair Mark Engelman, head of IP at Hardwicke said, it is certainly possible to slur the deceased.

Ed Miliband could in theory consider registering his father’s personality with the Guernsey image rights register, said Sally Wilkinson, director and founding shareholder of Guernsey Harbour Intellectual Property Ltd, who believes the image right presents a market opportunity.

The Guernsey register makes the image a right that may be licensed, or treated like any other IP right, she explained. Although registered in Guernsey, the right may be enforced in the UK under certain circumstances.

Launched in December 2012, the register at the time of writing has just 13 registered personalities including musicians Tiësto and Afrojack, and celebrity hair stylist Daniel Galvin Jr.

Image rights cover an expression of personality in the public domain. An expression of personality may be the voice, likeness, gesture or mannerism of a person. It differs from a trademark in that it does not have to be associated with a product.

As with copyright, an image right is deemed to be infringed if the infringer is proven to have received financial or economic benefit, if it is detrimental to the registered person, or if there is likelihood of confusion. The infringed party is then entitled to seek an injunction, disposal of infringing materials and damages.

John Olsen, a partner at Edwards Wildman Palmer UK LLP, welcomed the establishment of the image right in Guernsey; there is no such protection in the UK.

He said the recent passing off case between pop star Rihanna and Topshop, where Rihanna successfully sued the high street retailer for selling a T-shirt without her permission, may have gone on for far longer if it weren’t for a technicality.

In a similar scenario, an image right could speed up legal proceedings.

“Passing off is amongst the most costly cases to bring,” he said, adding that if an image right was available, the prior work would have been done, goodwill may have been established and litigation would be far cheaper and less risky.

Actor Larry Lamb knows the value of a star’s image. A celebrity in the UK, he is often photographed by fans, whose images may be instantly uploaded and disseminated on social media sites.

While he is happy to have the attention to a degree, acknowledging that “it’s the price you have to pay as an actor,” it means “you’re instantly out there, you’re owned.”

A lack of control over his image presents practical difficulties for Lamb as well. Finding a free picture of himself that his charity could feature on its site was not an easy task. One day everyone is taking your picture, and the next they’re charging for it, he said.

Roger Blitz, leisure industries correspondent at The Financial Times, is sceptical about the establishment of an image right in the UK:

“Do we need to resort to law when we should be looking at the context of where law is set?” he said.

He added that he’d always uphold the right to freedom of speech, and welcomed the public debate the Ralph Miliband story has provoked. Suing “is not a direction we should be going in,” he said.

Clive Thorne, a partner from RPC who represented Alan Clark in his suit against the Associated Press when the Evening Standard published spoof diaries falsely attributed to the Conservative MP, argued from the floor that the image right is unnecessary:

“Guernsey is out on a limb in [registering] petty patents,” he said, adding that we have trademarks, passing off and, to some extent, copyright to protect IP.

“I can’t help thinking it’s a bridge too far,” he said.

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Trademarks
31 July 2013   A UK court has ruled in favour of pop star Rihanna in her dispute with retailer Topshop over T-shirts carrying her image.