Image Rights
Image Rights
The onward march of a celebrity culture continues with influencers endorsing or sponsoring brands. This article explores whether English law has marched in step with society. The term "image rights" refers to an individual's proprietary right in their personality - the right to prevent others copying their name, likeness, signatures, nicknames or slogans associated with them. There are now social media influencers who are monetising very substantial social media followings.
Despite the many references to image rights in contracts the UK has no codified law of privacy or image rights - the law is patchy with lawyers having to “pick and mix” to give clients the protection the clients assumed was pretty much automatic. The approaches lawyers will look are:
Trade mark infringement It is increasingly common for celebrities to attempt to register their name or image as trade marks and, when there is no registration, the celebrities can choose to use the law of passing off. However, the enforceability of such rights has yet to be tested in court. The relationship between the trade mark law requirement for distinctiveness, and the consequences of fame, in particular, is a difficult one. Ironically, a person's fame can be the very reason why it is not possible to register their name or image for certain classes of goods and, even where a famous name is registered as a mark, it can operate to limit the degree of protection afforded by the mark. The then Trade Mark office refused to register "Diana, Princess of Wales" for a wide range of goods and services. There are “passing off” cases, involving unregistered trade marks, which prevented third parties suggesting a celebrity had endorsed their brand.
Copyright cannot protect a name but may offer some protection for image rights, insofar as a celebrity has copyright in the photographs or film taken of themselves. A celebrity can look to protect their image by obtaining copyright in the film or photographs.
A photograph or film is personal data so protected by GDPR. As a general rule a photograph will identify a natural person. If that data is processed unlawfully and such use affects an individual’s rights and interests the GDPR will enable that individual to seek redress.
The advertising standards codes include specific provisions regarding the use of images of individuals. In relation to both private citizens and celebrities, the codes could protect commercial aspects of image rights because they protect an individual looking to prevent their name or image being commercially exploited. However, this approach will not lead to damages being awarded.
The Court of Appeal commented in 1999 in the Elvis Presley Enterprises v Sid Shaw Elvisly Yours case that there is no "free-standing general right to character exploitation enjoyable exclusively by a celebrity". However, any legal system has to evolve and reflect where society is. Many speculate that a law of privacy may emerge through the Human Rights Act. Those wishing to enforce image rights might seek to rely on Article 1 of the First Protocol of the Convention, which provides that every natural or legal person is entitled to the peaceful enjoyment of their possessions and may not be deprived of them unless this is in the public interest and subject to the conditions provided for by law. In other jurisdictions protection of image rights has been based on this right to privacy. For example, in France the right to privacy set down in Article 9 of the Civil Code has been interpreted widely to protect private individuals and commercial aspects of personality. The English courts have already used the Human Rights Act to protect the privacy of people from third parties who are exploiting those photographs and some see this approach culminating in protecting commercial image rights.
