Image Rights
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Legal protection for valuable celebrity ‘image’, ‘personality’ or ‘publicity’ rights does not exist per se in the UK. Protection is based on a number of statutory common law rights, none of which are specifically designed to protect the unauthorised use of a personality’s image.
Without a general right of publicity or right of personality (as exists in other common law countries such as the US, Canada and Australia), a celebrity has to rely on passing off, trade mark infringement, copyright infringement, libel, malicious falsehood and the Trade Descriptions Act 1968.
The closest the UK courts have come to recognising a ‘celebrity right’ was racing driver Eddie Irvine’s success against Talksport in the High Court in March 2002. This decision was consistent with existing principles; it simply recognised the commercial value of personal endorsements.
Celebrities argue that they should have legal control over their own image and that this amounts to a valuable intangible right that ‘belongs’ to them. Consequently, they should be the ones to benefit commercially from it. On the other hand, others argue that a celebrity’s image is a public property as part of popular culture, and should not be protected as a private property right.
Question 50 |
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The English courts appear to be developing the law to give celebrities protection against the misappropriation or unauthorised use of their images. Discuss the development of the UK case law.
Answer Plan
The law relating to image rights in the UK is judge-made law. A good answer will cover the following key cases and law:
Answer |
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The customary position is that English law will not afford protection to celebrities, on the basis that they have voluntarily invited publicity and so they should accept that their name and reputation be used as public property and should not be subject to legal control. However, this attitude on the part of the courts has been slowly evolving since 1930.
In the UK, the first case relating to use of a celebrity’s image arose in Tolley v Fry (1930), which involved a celebrity endorsement and defamation claim. Cyril Tolley was a well-known golfer. When chocolate manufacturer Fry’s used a caricature of him playing golf with a Fry’s chocolate bar sticking out of his pocket for its advertising, he sued for defamation. Such use, he said, implied that he was endorsing a product, not suited to his status as an amateur sportsman.