Court provides clarity over “image rights” as celebrity wins T-shirt battle
Celebrities cannot rely on “image rights” as no such right exists in English law, the Court of Appeal has held in a dispute between Topshop and Rihanna over t-shirts bearing her photograph.
Nevertheless, Umbrella singer Rihanna came out on top in a legal dispute with the fashion retailer over its use of her image without permission.
Lord Justice Kitchin and two Court of Appeal judges upheld the High Court’s finding that the use of a photograph of Rihanna on a T-shirt gave the impression that she had endorsed the product and therefore amounted to passing off, in Fenty & Ors v Arcadia Group Brands [2015] EWCA Civ 3.
The photograph was taken by an independent photographer who owned the copyright to the image and licensed the use of it to Topshop.
Topshop’s legal team argued that the public had no expectation that a piece of clothing decorated with an image had been authorised by the people in that image. Team Rihanna countered that the misrepresentation damaged her “goodwill”. The court granted an injunction against Topshop selling the T-shirts.
In its judgment, the court provides clarity on the existence of “image rights”.
Stephen Boyd, of Selborne Chambers, says: “Kitchin LJ, giving the lead judgment, reiterated the distinction between endorsement and merchandising and made clear that in English law there is no ‘image right’ or ‘character right’ which allows a celebrity to control the use of his or her name or image. Registered trade marks aside, no-one can claim monopoly rights in a word or a name. Accordingly, a celebrity seeking to control the use of his or her image must therefore rely upon some other cause of action such as breach of contract, breach of confidence, infringement of copyright or passing off.”
Kitchin LJ said passing off was about “goodwill”. This allegation did disclose a sustainable case in passing off. In substance, Rihanna alleged that she had suffered damage to the goodwill in her business as a result of the misrepresentation, implied in all the circumstances, that she had endorsed the T-shirt.”
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