The Doctrine of ‘Personality Rights’ in the UK

The Doctrine of Personality Rights in the UKThe United Kingdom has never acknowledged a specific doctrine of disposition rights the law provides neither pertinacious nor consistent security measures, as the courts ar sceptical some creating monopoly rights in nebulous concepts such as names, homogeneousness or popularity.1 Therefore celebrities and some other high-profile individuals rely on a combination of mountain pass collide with, trademark, copyright and privacy laws for fortress of the commercial range of their temperament. None of these were invented to protect personality rights however they are gradually underdeveloped to adjust to the commercial strongity of the value of eminence merchandising and endorsements. Misleading the public by giving a treasonably impression of endorsement of a product by a laurels has been to commit the tort of way out off for over a decade.2 The tort of passing off was traditionally delimit as nobody has the right to represent his goods as the goods of someone else.3 The classical trinity is necessary to succeed in passing off the goodwill or reputation must be usurped to the products or services of the plaintiff, the misrepresentation must lead to the confusion as to the source of the goods and services, and this confusion must elbow grease damage to the claimant.4 In the courtship of Fenty Ors v Arcadia Group Brands Ltd (t/a Topshop) Anor,5 high street elan retailer Topshop licensed an image of popstar Rihannas face from a photographer and printed it on a island of Jersey without either her permission being sought nor obtained. Rihanna then sued for passing off. Mr Justice Birss applied the doctrine to the dispute. Although on in truth particular facts, Birss J imbed in favour of Rihanna and established a general principle that arguably goes against any celebrities who great power nurture hoped to see the root of a doctrine of personality rights. This decision develops the tort of passing o ff to small percentage point whilst emphasising that, in each case, the facts are decisive.6 The debate about the science of personality rights in the UK is gathering impetus in the wake of Fenty with academics like Walsh enquireing if personality rights are finally on the agenda.7In the mid-seventies the UK courts were regularly unwilling to find false impressions relating to merchandising resulted in misrepresentation because of the need to show that they were engaged in a common field of action at law. This introduced a somewhat blunt test for confusion and there often would be no proximity between, for example, a radio broadcaster and a metric grain manufacturer.8 Until the test was discarded, at least as an absolute condition,9 it limited attempts to expand the categories of misrepresentation to cover licensing connections.10 Where the absence of a common field of activity was non conclusive the court for example held the use of the name of the pop group Abba on merchand ise did not amount to passing off on the basis that there was no real possibility that the public would be confused into thinking that Abba had approved the goods merely because their name or photograph appeared on them.11 also the use of a photograph of the Spice Girls on the cover of a sticker collection was held not to constitute passing off.12 An important exception came when it was held passing off had been established where cartoon characters, the Teenage Mutant Ninja Turtles, were on clothing without authorisation, since the public did expect the goods to be licensed.13 This case was distinguished from the Abba scenario on the basis that it was brought in the setting of the unauthorised duplicate of images of cartoons in which copyright existed, rather than the image or name of a celebrity. Yet the decision is generally viewed as start up character merchandising law in the UK.In the seminal case of Irvine Laddie J held passing off covered cases of false endorsement, like where Talksport had altered an image of racing driver Eddie Irvine to have him hold a branded Talksport radio for advertising purposes without his permission. Laddie J considered the increasingly popular merchandising practice of personality licensing, including the licensing of a personalitys name or likeness outside a celebritys area of expertise as a common and lucrative practice for them, to reject the common eld of activity condition. Laddie J identified the inbred flexibility of passing off by saying the sort of cases which come within the setting of a passing off action has not remained stationary over the yearspassing off is closely connected to and dependent upon what is happening in the market place.14 Although Irvine was celebrated as a turning school principal in the protection of personality rights, the important limitation in the judgment was that passing off was limited to false endorsement and excluded merchandising cases. The classic celebrity-merchandising situ ation seems similar the celebrity has a reputation and the public knows that it is common practice for celebrities to market their popularity by granting merchandise licenses.15 Laddie J differentiated between cases of endorsement and merchandising, however in Fenty Birss J approved Laddie Js reasoning but made it clear there is no difference in merchandising cases and that the efficacious principles apply equally well in passing off if the public had been deceived into thinking the celebrity had authorised the product.Rihanna easily established sufficient goodwill in the fashion industry, as a appearance icon because of her cool, edgy image.16 This was demonstrated in her endorsement contracts with Nike and Gillette, her fashion design and promotion work with partake retailer River Island, and she had worked with HM, Gucci and Armani to collaborate on and design clothing. Birss J therefore stated Rihannas identity and endorsement in the world of high street fashion was perceived to have tangible value by an organisation well placed to know.17Misrepresentation was the key issue. Topshop argued the clothing was simply a tee shirt attitude an image of Rihanna and the public had no expectation that it was authorised by her, whereas Rihanna contended that the particular facts of the case meant customers were misled into believing she had endorsed the t-shirt herself. The court considered the point in depth, addressing the unlike circumstances before considering the issue as a whole. Certain evidence considered was found to be neutral to finding a misrepresentation. The fact there was other unauthorised clothing bearing Rihannas image on sale did not imply that the public would necessarily believe that such clothing was authorised. Topshop had change both clothing bearing authorised images and clothing, which was approved or endorsed by celebrities. Overall, its customers were neutral having no positive expectation either way when considering clothing bearing a celebritys image. Also the t-shirt was fashionable and on sale in a high street retailer. Certain factors indicated finding in Topshops favour. Some of Rihannas official merchandise included an R slash trademark logo or her name, the t-shirt lacked both, and apart from a few days online the word Rihanna was not used at all. There was also no genuine evidence of actual confusion. However on balance, significant factors back up RIhanna. Topshop had made considerable effort to emphasise connections in the public consciousness between the store and celebrities notably Kate Moss, and now more(prenominal) importantly Rihanna. This made it more likely purchasers would conclude that the t-shirt was authorised and being a fashion retailer, consumers would reasonably expect Topshop to publicise and sell products authorised by celebrities. Topshops antecedent association with Rihanna was important as Topshop ran a competition in 2010 to win a personal shopping appointment with Rihanna. R ihanna also visited Topshop in 2012 which they chose to publicise by tweeting to their 350,000 Twitter followers, just before the t-shirt went on sale a significant commercial communication in the eyes of Birss J, to a demographic who value social media highly. Topshop had therefore repeatedly associated itself and it products with Rihanna in a high-profile manner and this demonstrated Topshop were looking to take advantage of Rihannas position as a style icon. The image on the t-shirt was taken during the video shoot of RIhannas single We Found Love from her 2011 Talk that Talk phonograph album. Importantly, it showed Rihanna with the akin hairstyle and headscarf as the album cover. This meant that the image was not just recognisably Rihanna but looked like a promotional shot for the music release. The court found that it was entirely likely that, to her fans, the image might be regarded as part of the marketing campaign. This was a critical point in the decision. Although Birs s J believed a good number of purchasers would buy the t-shirt without considering the question of authorisation, he concluded that, in the circumstances, a substantial proportion of those judging the t-shirt (specifically Rihanna fans) would be encouraged to think that it was clothing authorised by the popstar. They would have recognised that particular image of Rihanna not simply as an image of her but as a particular image of her connected with the particular context of the album. Many of these purchasers would have bought the product because they thought that Rihanna had authorised it others would have bought it because of the value of the perceived authorisation itself. In each case, the idea that it was authorised was part of what incite them to buy the product and in each case they would have been deceived.The test for damage was also easily satisfied. If a substantial number of purchasers were deceived into buying the t-shirt because of a false belief that it was authorised by Rihanna herself, then that would have damaged Rihannas goodwill, both by way of gross revenue lost to her merchandising trading and a loss of control over her reputation in the fashion sphere.18Considering the particular facts, it is not surprising Birss J found in Rihannas favour. The classical trinity of passing off were fulfilled, however this decision is unlikely to open the floodgates for cases to be brought every time a celebritys image is used without a merchandising license, as it was made clear the mere sale by a trader of a t-shirt bearing an image of a famous person is not without more, an act of passing off.19 Birss J was eager to emphasise that there is today in England no such thing as a free standing general right by a famous person (or anyone else) to control reproduction of their image.20 The judgment is useful as a confirmation of the general principles of passing off applied to unauthorised use of celebrity images.21 If the UK is approaching the debut of a d octrine of personality rights in some form, it is necessary to analyse the justifications and gauge whether they are robust enough to validate the subsequent restraints that would be placed upon society. The justifications suggested in support of personality rights fall largely into three groups moral, economical and consumer protection arguments.The labour-based moral justification is founded on John Lockes theory of property.22 Essentially, itprovidesthat an individualhasamoralrightintheobjectofvaluetransformedbecauseoftheir efforts. Nimmer supported this point by contending that the person who has long and laboriously nurtured the fruit of publicity values and has spent time, effort, skill, and even money in their earthly concern, is presumably allowed to enjoy it.23 Professor McCarthy feels personality rights are a common-sense, self-evident right needing little intellectual rationalisation to justify its existence.24 However, Madow deconstructs these arguments by contending t hat fame is something conferred by others and is not necessarily down to the efforts of the individual.25 still according to Madow the labour argument ignoresthe fundamentalrole themediaplayinthecreationofcelebrities.He uses the example of Einstein andobservesthatthemedia selectedhim becausehedidinterviews, wasquotable and hehadtherightlook.26TheimageofEinsteinthat is familiar today,what itmeanstothe pubic themadbutpleasant scientistwith bushywhitehairandmoustache wasa personality createdby themedia. Therefore only when the media and public take notice and attach importance to a personal image can it fully enter into the market place.27 Thus contrary to the statement by McCarthy, it would appear a celebrity cannot justify that they solely created their public image and consequently cannot stake an indisputable moral claim to the exclusive ownership or control of the economic value that comes with it.Personality rights can also be justified on economic arguments. Economic theory p roposes persons should be economically incentivised into undertaking socially, enriching activities such as creating a persona that benefits society culturally,28 and this creativity can only be encouraged if the person is given exclusive right to control their creations, because this provides incentive for performers to make economic investments required to produce performances appealing to the public.29 However Carty doubts whether personality rights would produce increases in economic activity or innovation.30 Following Madows ideas, the UK is shortly without a personality right, yet celebrities still gain significant income from their publicity values and failure to introduce such a right in the next will not stop individuals profiting from the income already gained through endorsements and merchandising officially authorised by them.31 According to Madow such protection also has distributional consequences,32 whereby personality rights elevate the price of merchandise and adve rtising in general, placing more wealth in the hands of a select few, who already derive significant income, and away(p) from the mass of consumers making up society.33Another justification for personality rights is the consumer protection argument focusing on the idea that without protection, the public will be misled about the authorisation of a celebritys association with a product or service. At first sight the consumer protection argument appears advisable, joining protection of the celebritys success with protection of the consumer, and it mirrors the traditional rationale for trademark and passing off.34 However personality rights would allow celebrities to stop commercial uses of their personas that are not fraudulent or deceptive, and Professor Shiffrin states personality rights give celebrites power to control the dissemination of truth for his or her own profit.35 On another level, Madow argues the degree to which personality rights would stop the consumer being misled i s generally superfluous,36 because in situations where there is a realistic chance that, consumers will be deceived or confused about a celebritys association or endorsement, legal mechanisms better adapted for that reason already exist, notably passing off.In conclusion, the extent to which Fenty constitutes a creation of a doctrine of personality rights is limited. In the words of Roberts this judgment does not change the law and it does not create an image right. It simply applies the animate doctrine of passing off to the evolving commercial reality of the value of celebrity endorsements.37 The decision is important as it improves a flaw in the Irvine verdict,38 in the same way that Irvine marked the first time that passing off was applied to false endorsement, Fenty is the first time it has been applied to false merchandising featuring a real person, with merchandising claims having only previously succeeded in relation to fictional characters,39 and indicates that UK courts a re slowly recognising the need to protect the commercial value of celebrity merchandising. It is clear from the case that the result was carefully balanced on particular facts and that if for example Rihanna had not been a fashion icon or the image was different she would have little chance of being successful. Fenty highlights the issue of misrepresentation is however always one of fact, and the false belief of the purchaser is key to constitute passing off, a false belief incited in the mind of the prospective purchaser must play a role in their choice to buy. Although there are persuasive advocates of the creation of a doctrine of personality rights,40 and there is also no definite rationale for an absolute rejection,41 it would seem the decision in Fenty should be welcomed because there are substantial drawbacks in the moral, economic and consumer protection justifications put forward. The decision develops passing off to a small degree to keep up with modern business practice without creating personality rights, which are not necessary as celebrities are already sufficiently protected. The tort of passing off has again demonstrated its inherent flexibility and that it is closely connected to and dependent upon what is happening in the market place. To sum up, without an element of consumer deception, English law in this area frame characteristically cautious,42 and this should be welcomed.1 J. Klink, 50 years of Publicity Rights in the United States and the Never Ending Hassle with Intellectual Property and Personality Rights in Europe, (2003), 4 IPQ 363, p.366.2 Irvine v Talksport Ltd 2003 EWCA Civ 4233 Reddaway v Banham (1896) 13 RPC 218 at 244 per Lord Halsbury4 Reckitt Colman v Borden 1990 1 WLR 491 at 499 per Lord Oliver5 2010 EWHC 2310 (Ch)6 D. Meale, Rihannas face on a T-shirt without a licence? No, this time its passing off, (2013) 8(11) JIPLP 823, p.823.7 C. Walsh, Are personality rights finally on the UK agenda?, (2013) 35(5) EIPR 253, p.253. 8 McCulloch v Lewis A whitethorn 1947 2 All ER 8459 Lyngstad v Anabas Products 1977 FSR 62 at 6710 Wombles Ltd v Wombles Skips Ltd 1975 FSR 488 Ch D11 Lyngstad v Anabas Products 1977 FSR 6212 Halliwell Ors v Panini Ors (6 June, 1997, unreported)13 Mirage Studiosv Counterfeat garments 1991 FSR 14514 2002 FSR 60 at para 13-1415 J. Klink, op.cit., p.375.16 Fenty v Topshop 2013 EWHC 2310 (Ch) at 4617 Ibid at 4218 Ibid at 7219 Ibid at 7520 Ibid at 221 H. Beverley-Smith and L. Barrow, Talk that tortof passing off RIhanna, and the scope of actionable misrepresentation Fenty v Arcadia Group Brands Ltd (t/a Topshop), (2014), 36(1) EIPR 57, p.61.22 J. Locke, The Second Treatise of Government, (New York Liberal Arts Press, 1952)23 M.B. Nimmer, The Right of Publicity, (1954) 19 Law and Contemporary Problems 203, p.216.24 J.T. McCarthy, The Rights of Publicity and Privacy, (New York C.Boardman, 1987), s.1.1B 2 at 1-5 s.1.11C at 1-46.25 M. Madow, Private Ownership of Public Image Popular Cultu re and Publicity Rights, (1993), 81 CLR 125, p.182.26 Ibid, p.19027 J. Fowles, Celebrity Performers and the American Public, (Washington D.C. Smithsonian Institute Press, 1992), p.84.28 J.T. McCarthy, Melville B. Nimmer and the Right of Publicity A Tribute (1987) 34 UCLA LR1703, p.1710.29 D.E. Shipley, Publicity Never Dies It just Fades Away, (1981) 66 Cornell LR 673, p.681.30 H. Carty, Advertising, Publicity Rights and English Law, (2004) 3 IPQ 209, p.251.31 M. Madow, op.cit., p.21132 Ibid, p.218.33 Ibid34 H. Carty, op.cit., p.252.35 S. Shiffrin, The First Amendment and Economic Regulations Away from a world(a) Theory of the First Amendment, (1983) 78 NW ULR 1212, p.1258.36 M. Madow, op.cit., p.233.37 J. Roberts, Face off Rihanna wins image rights case, (2013), 24(8) Ent LR 283, p.285.38 A. De Landa Barajas, Personality rights in the United States and the United Kingdom is Vanna too more? Is Irvine not enough?, (2009) 20(7) Ent LR 253, p.258.39 J. Roberts, op.cit., p.285.40 S. B ains, Personality rights should the UK grant celebrities a proprietary right in their personality? Part 2, (2013) 18(6) Ent LR 2054142 H. Beverley-Smith, op.cit., p.61.