Protecting Your Image

October 10, 2008

English law is currently evolving in how it protects celebrities from having their image exploited as image disputes are becoming more common. Judges are becoming more flexible in dealing with such disputes and finding ways to protect image rights by stretching other areas of law – confidentiality, passing off, human rights law etc. Consequently, there have been several successful cases where celebrities’ image rights have been protected.

 The Right of Publicity

 In England image rights were not given much protection and what is known as the “right of publicity” in other countries was rejected here. The right of publicity includes the right to control the exploitation of your own name, likeness and personality. Although English courts have yet to confirm that there is a blanket right of publicity they have all but reached that conclusion through using the causes of action found below.

Passing Off

In 2003, Eddie Irvine, the Formula One Driver, sued a radio station which had used a doctored image of Irvine listening to a radio with the radio station’s logo on it. The court found in favour of Irvine who had argued that such an act constituted passing off. This was the first time an English Court recognized this cause of action for celebrity rights. However, at the moment the judgement is still fairly new and it is still uncertain as to how much passing off will help celebrities to protect their image. Privacy In 2004, Michael Douglas and Katherine Zeta-Jones were able to successfully sue Hello! magazine for breach of confidence when the magazine published unauthorized photos of their wedding. The Douglases had given OK magazine the exclusive right to publish photographs taken at the wedding. They were awarded £1,047,756: £1,033,156 went to OK and £14,600 to the Douglases.

Breach of Confidence stems from the concept of the law of privacy. Many U.S. states have already used privacy laws to protect celebrity’s image rights.

Human Rights

One of the most interesting developments in privacy law occurred this year when JK Rowling (on behalf of her son) sued a newspaper that had published pictures of her, her husband and infant son on a private outing in Edinburgh claiming that the newspaper had violated her son’s human right to privacy. The Judge in this case ruled that under Human Rights Law “If a child of parents who are not in the public eye could reasonably expect not to have photographs of him published in the media, so too should the child of a famous parent.”

Trade marks

Traditionally England has denied trade marks for celebrity’s names and likenesses. This has changed after a decision in the well-known case of Arsenal Football Club v. Reed, where the Appellate court left the possibility of well-known celebrities having trade mark rights in their name and image. Celebrities have been taking advantage of this and have recently been registering for trade marks. For example the famous footballer Wayne Rooney now has Community Trade Mark Registrations for his name and signature.

The Independent Television Commission

 In 2003, David Bedford, the long distance runner from the 1970’s known for wearing red socks and having a distinctive combination of a moustache and long hair, complained to the Independent Television Commission (“ITC”) about 118 118 using his caricature in their advertising. 118 118 were advertising with two runners who looked very similar to David Bedford when he was at the height of his running career in the 1970’s. The ITC found that 118 118 runners were a violation of the Advertising Standard’s Code which prohibits the portrayal, caricature or reference to any living person without their consent. The ITC did not take any action, however; because David Bedford had waited 6 months to bring his action and the ITC took this as evidence that he had not had any financial harm. After the decision of the ITC, despite speculation, Bedford declined to take legal action against 118 118 apparently due to prohibitive legal costs. Many legal theorists speculate that Bedford would have prevailed in a private action and are critical of the decision of the ITC.

Conclusions

In the past few years English Courts are becoming increasingly sympathetic to the difficulties celebrities face when trying to protect their image. It seems that they finally realize the commercial significance of celebrity endorsements and are willing to extend protection to it.