Image rights are an extremely valuable and lucrative commodity for celebrities and personalities of all kinds, from entertainers to online influencers and sports professionals.
While the law in the UK currently does not offer a specific ‘right to image’, in this article, we consider a number of legal options which may be available to protect image rights from exploitation by others.
What are image rights in the UK?
Image rights refer to the various intellectual property or other legal rights that an individual holds in their own persona or public image of their personality.
This can include the person’s name, photo, likeness, voice, signature or any other recognisable characteristics, including their personal brand, slogans and logos. Essentially, image rights are the expression of a particular personality in the public domain.
These rights can be especially important for celebrities such as sports personalities, entertainers, bloggers and vloggers and other online influencers. By lending their face to a product or service as a means of endorsing it, this can create a lucrative income source for the individual in question, as well as the potential to increase consumer sales and enhance the brand image they agree to promote.
Given the commercial value of celebrity endorsements in a digital era, it is important that these individuals have effective means of protecting the exclusive right to licence their image, and to prevent any unauthorised use of their persona. Still, without a specific right of publicity in the UK, as exists in much of the US, an individual does not necessarily have the exclusive right over the use and exploitation of their image.
Can you protect your image rights?
In the UK, there is no specific legislation dealing with image rights for individuals, not even for the rich and famous. However, there are various intellectual property laws, civil torts or human rights which can be used in the protection of an individual’s persona or public image.
Passing off
The tort of passing off is one of the most popular areas of law used by celebrities to protect their valuable image rights. Passing off is a civil wrong which typically involves one trader misrepresenting the goods or services that they are selling as being those of another trader, or vice versa. Passing off therefore protects a traders’ brand reputation and goodwill in relation to their goods and services.
This means that where an image of a celebrity is used to promote a product or service without their permission, the tort of passing off will provide that individual with protection against unfair imitation of their image rights, especially where this could damage their reputation.
Where reputation or goodwill in image rights can be established in the context of false endorsements, protection arises automatically and lasts indefinitely. However, the celebrity in question would need to prove the following two interrelated facts:
- That they had a significant reputation or goodwill at the time of the acts subject to complaint and
- The actions of the defendant gave rise to a false message which would be understood by a not insignificant section of their market that their products or services have been endorsed, recommended or approved by the claimant.
Both are questions of fact for the court to decide on the available evidence: the first, whether the claimant has a significant reputation or goodwill when the image was misused, including the extent to which that individual is well known by name and appearance to a significant part of the public in the UK; the second, whether, on a balance of probabilities, a significant proportion of those to whom the promotional material was sent would think the claimant had endorsed or recommended the product or service in question.
In Irvine v TalkSport Ltd [2003] EWCA Civ 423, the Court of Appeal categorically confirmed that the unauthorised use of an image which falsely suggests the celebrity endorsement of a product or service amounts to passing off under UK law. In this case the defendant radio station, formerly “Talk Radio”, had used in their promotional material a doctored picture of the claimant, a well-known racing driver, holding a radio with the words “Talk Radio”.
The claimant brought an action for passing off on the basis that it was understood by the market in question that he had personally endorsed the radio station. In finding for the claimant, the court at first instance had taken judicial notice of the fact that it is now common for famous people to exploit their names and images by way of endorsement. The court then went on to find that the defendant had created a false message that the claimant had endorsed their radio station and so were liable in damages under the law of passing off. The Court of Appeal agreed, awarding the claimant the sum of £25,000 in damages.
It is also clear from the judgment given by the High Court at first instance, upheld by the Court of Appeal, that the cause of action in passing off in the context of false endorsements does not require the claimant and defendant to share a common field of activity, nor that the endorsement will result in some financial loss to the claimant. Essentially, all that is required is for the claimant to establish that there has been a misrepresentation on the part of the defendant, enabling the defendant to make use or take advantage of the claimant’s image.
Infringement of trademarks
The use of trademarks is another popular area of intellectual property law that can be used in the UK by well-known personalities to protect their image rights. The key difference between trademark infringement and passing off is that the former deals with registered rights, and the latter with unregistered rights, although the same facts can give rise to claims for both.
In a general context, a trademark can include words, signs or symbols, ie; something that distinguishes goods and services from those of others, and is a commercially recognised way of indicating origin. In the context of celebrities, a trademark can be used to register the names, signatures and other graphical symbols which denote a particular individual. Both Victoria and David Beckham have their names registered in this way. An image of a celebrity is also capable of being registered as a trademark.
However, to be registered as a trade mark and to attract the protection afforded by the law here, either the name, signature, symbol or image must be distinctive, such that it clearly identifies an individual from others. This means that not every word or logo etc is capable of being registered as a trademark. It is only where the “distinctive” element exists that a trade mark can be used to prevent others from imitating a personality brand.
This is well illustrated in the case of Elvis Presley Trade Marks [1999] R.P.C. 567, where the “Elvis Presley” name was not of itself sufficiently distinctive to justify registration as a trade mark, being neither adapted to distinguish any particular goods nor capable of distinguishing them. In this way, it seems clear that the courts will be reluctant to create monopolies over personality names, at least in the context of trading in memorabilia.
The right to respect for private and family life
The right to respect for private and family life is enshrined under Article 8 of the European Convention on Human Rights (ECHR). This right can be argued in various types of privacy complaints, for example, the tort of misuse of private information or breach of confidence.
However, the right to privacy must always be balanced against the right of the public and press to freedom of expression as guaranteed by Article 10 of the ECHR. In many celebrity cases, especially where the individual in question has spoken openly about their private lives, they will find it hard to prevent publication of revelations and photos supporting those stories.
This often means that the extent to which an individual will be afforded protection from press intrusion, will very much depend on how they have previously conducted themselves in front of the media. In many cases, the courts will be willing to accept that it is in the interests of the public to reveal personal matters about high-profile figures, including where this corrects a fake or misleading public image which the claimant has sought to advance.
It is only usually where the revelation of personal information is simply to publish invasive stories, rather than contributing to important public debate, that the court will intervene.
Can you use someone’s image without permission?
It is a potential infringement of image protection rights if a person seeks to steal, copy, reproduce, sell or otherwise use a person’s image without their permission. However, the nature of the sanctions available for breach of these rights will depend upon the context in which the unauthorised use occurs and the cause of action relied upon by the claimant.
The unauthorised use of trademarks, for example, may constitute a criminal offence. If found liable for using a trademark without the owner’s permission, a defendant could be facing a signifiant fine or even a custodial sentence. In most cases, the owner of image rights will also have the right to take legal action through the civil courts, claiming injunctive relief and damages against those who may be guilty of infringing their rights.
However, even where there is a strong case for the protection of celebrity image rights, for example, under the popular tort of passing off, expert advice should always be sought as to the cost and benefits of litigation. The available law designed to protect commercial personality interests can be complex and uncertain, where the UK provides piecemeal and arguably incomplete protection for image rights. As such, the litigation and financial risks can often outweigh the potential benefits of taking legal action.
Still, there are other available options, including the prospect of negotiating a sensible compromise in which the potential defendant agrees to cease any further unauthorised use, with agreed damages for any infringement of image rights to date. It may also be possible to explore lucrative licensing opportunities for the continued and authorised use of image rights.
Image rights FAQ’s
What are UK image rights?
UK image rights refer to the various intellectual property or other legal rights that an individual holds in their own persona or public image of their personality. This can include the person’s name, photo, likeness, signature, personal brand, slogans or logos.
What does image rights mean?
Image rights mean the right of a well-known personality to use and exploit their public image to commercially endorse products and services. There are various ways in which a celebrity can seek to protect their image rights, including the law of passing off and trade mark infringement, although there is no specific “right of publicity’ enshrined in UK law.
How do I protect my rights to a photo?
The right of a third party to use a photo will depend on who took the photo, the context in which it was taken and whether or not permission was given. In some cases, it may be possible to protect your rights to a photo, either where publication would represent a serious invasion of your privacy or where it has been used to falsely endorse products or services.
Can images be used without permission?
UK law does not recognise a “right of publicity” or even a distinct right to protect a person’s image or likeness from unauthorised use by third parties. However, there are various intellectual property and other legal rights that can be used to prevent an image from being used without permission, including the right to respect for private and family life under Article 8 of the European Convention on Human Rights.
Legal disclaimer
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
