A recent essay written by model and actress Emily Ratajkowski has reignited the debate on unauthorised use of image rights. Ratajkowski discusses the economic and emotional consequences of losing control of her own image and is one of a growing list of celebrities who are eager to prevent third parties using their image without licence.
Here we examine the legal position as it currently stands in the UK.
Protection of image rights
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. This concept comes from the idea that each person should be able to control how ‘persona’ is commercialised.
Under English law, however, there is no stand alone right of personality, or ‘image right’, by which a model or celebrity can protect their likeness. Protection is only available on a fragmentary basis and there are a number of points to be aware of in respect of the different options:
- Passing off: The tort of passing off has been used by well-known celebrities to prevent a false representation that they have endorsed products or services. It requires them to show that they have goodwill and reputation in their name and/or image, and there is a misrepresentation which causes them damage. Typically this might be where a brand indicates that an individual uses or endorses their products in some way, when in fact this is not the case, and the individual can show that they would have been justified in insisting on a licensing fee for the use of their name and image by the brand. For instance, in 2012 Rihanna successfully sued Topshop on the grounds that using her image on a t-shirt without her approval was an act of passing off. The case law in this area makes it possible for an individual to license and exploit certain rights which can be controlled under various types of contractual agreements. Image rights deals enable the parties to exploit that likeness for commercial value, i.e. through sponsorship and endorsement activities.
- ASA complaint: The BCAP and CAP codes which regulate TV, radio and non-broadcast advertising in the UK (including advertising online) can be the basis for a complaint where an image depicting a well-known individual is used by a brand in advertising without consent. However, this may ultimately only lead to naming and shaming of the brand via an ASA adjudication, following an investigation, so it is rarely the first port of call for an aggrieved celebrity.
- Privacy: It may be possible for an individual to rely on the law of privacy, which is the right to respect for private and family life and to prevent others using a person’s image without consent. However, the courts have noted that celebrities in particular must expect more intrusion arising from legitimate public interest.
- Trade mark: Registering a trade mark provides a practical method of protecting valuable rights in an individual’s brand and enabling commercial exploitation and a degree of protection against unauthorised use. However, the scope of the protection (in terms of classes of goods and the territories which are relevant), the barriers to registration as set out in the Trade Marks Act 1994 and the requirement to actually use the trade mark (for example, on merchandise) need to be carefully thought through prior to pushing ahead with an application, in order to maximise the potential benefits of registration.
The above rights and causes of action can afford some level of protection for high profile individuals, enabling them to exploit and protect their image and brand effectively. However, the fact that there is no clear-cut legal principle designed specifically to protect an individual’s image in the UK can make things less than straightforward for those starting out.
If you would like advice on any of these issues, please speak to one of our experts here.