The Doctrine of ‘Personality Rights’ in the UK

The school of thought of Personality Rights in the UKThe United Kingdom has never ack instantlyledged a specific doctrine of individualizedity rights the rightfulness provides neither coherent nor lucid tribute, as the courts ar sceptical about creating monopoly rights in nebulous concepts such(prenominal) as names, semblance or popularity.1 Therefore celebrities and other juicy-profile individuals rely on a combination of transeunt arrive at, trademark, copyright and privacy laws for protection of the technical cheer of their character. None of these were invented to protect record rights however they are stepwise developing to adjust to the commercial reality of the value of nonoriety selling and endorsements. Misleading the usual by giving a ridiculous judgment of endorsement of a product by a reputation has been to sanctify the tort of move absent for oer a decade.2 The tort of going onward off was tralatitiously defined as nobody has the right to p layact his bang-ups as the goods of someone else.3 The classical triplet is necessary to succeed in laissez passer off the good allow or reputation must be attached to the products or services of the plaintiff, the misrepresentation must lead to the sloppiness as to the source of the goods and services, and this confusion must cause damage to the claimant.4 In the case of Fenty Ors v Arcadia Group Brands Ltd (t/a Topshop) Anor,5 high street guardianship retailer Topshop licensed an compass of popstar Rihannas face from a lensman and printed it on a jersey without either her permission organism desire nor obtained. Rihanna then sued for departure off. Mr Justice Birss applied the doctrine to the dispute. Although on real cross facts, Birss J found in favour of Rihanna and established a worldwide principle that arguably goes over against any celebrities who might have hoped to promise the mankind of a doctrine of nature rights. This decision develops the tort of pass ing off to small degree whilst emphasising that, in each case, the facts are decisive.6 The think about the recognition of personality rights in the UK is gathering impetus in the wake of Fenty with academics worry Walsh questioning if personality rights are finally on the agenda.7In the 1970s the UK courts were regularly unwilling to find false impressions relating to selling resulted in misrepresentation because of the need to show that they were engaged in a common fi days of activity. This premised a somewhat uncivil probe for confusion and there often would be no propinquity between, for example, a radiocommunication broadcaster and a cereal manufacturer.8 Until the test was discarded, at least as an absolute condition,9 it limited attempts to expand the categories of misrepresentation to offer licensing connections.10 Where the absence of a common field of activity was non definitive the court for example held the use of the name of the pop group Abba on merchandise did not amount to passing off on the stand that there was no real possibility that the unexclusive would be intricate into mentation that Abba had authorize the goods merely because their name or photograph appeared on them.11 Likewise the use of a photograph of the Spice Girls on the keep of a sticker collection was held not to constitute passing off.12 An primal exception came when it was held passing off had been established where cartoon characters, the Teenage version Ninja Turtles, were on enclothe without authorisation, since the public did expect the goods to be licensed.13 This case was expansive from the Abba scenario on the basis that it was brought in the context of the unauthorised training of jut outs of cartoons in which copyright existed, rather than the public figure or name of a celebrity. still the decision is generally viewed as opening up character selling 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 market place shape 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 inherent flexibility of passing off by saying the sort of cases which come within the backdrop of a passing off action has not remained stationary over the yearspassing off is closely connected to and dependent upon what is occurrence in the market place.14 Although Irvine was celebrated as a turn of events point in the protection of personality rights, the material limitation in the judgment was that passing off was limited to false endorsement and excluded merchandise cases. The classic celebrity-me rchandising situation 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 micturate there is no difference in merchandising cases and that the legal principles consecrate 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 style icon because of her cool, edgy image.16 This was present in her endorsement contracts with Nike and Gillette, her fashion design and promotion make believe with rival retailer River Island, and she had worked with HM, Gucci and Armani to collaborate on and design apparel. Birss J thereof stated Rihannas identity and endorsement in the world of high street fashio n was sensedto have tangible value by an organisation well placed to know.17Misrepresentation was the key output. Topshop argued the clothing was s think a island of Jersey bearing 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 various circumstances before considering the appear as a whole. Certain evidence considered was found to be indifferent(p) to determination a misrepresentation. The fact there was other unauthorised clothing bearing Rihannas image on bargain did not imply that the public would necessarily believe that such clothing was authorised. Topshop had sold twain clothing bearing authorised images and clothing, which was approved or endorsed by celebrities. Overall, its customers were objective 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 include an R slash trademark logo or her name, the t-shirt lacked both, and asunder from a few days online the word Rihanna was not employ at all. There was also no genuine evidence of actual confusion. that on balance, significant factors supported RIhanna. Topshop had made considerable effort to try connections in the public consciousness between the store and celebrities notably Kate Moss, and now more importantly Rihanna. This made it more likely buyers would conclude that the t-shirt was authorised and being a fashion retailer, consumers would reasonably expect Topshop to bare and sell products authorised by celebrities. Topshops prior association with Rihanna was important as Topshop ran a competition in 2010 to win a personal shopping appointment with Rihanna. Rihanna also visited Topshop in 2012 which they chose to publicise by tweeting to their 350,000 cheep 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 blast of RIhannas single We Found Love from her 2011 Talk that Talk album. Importantly, it showed Rihanna with the same 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 simply 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 B irss J believed a good number of buyers 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 support 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. numerous 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 authoris ed by Rihanna herself, then that would have damaged Rihannas goodwill, both by way of sales lost to her merchandising business and a leaving of keep 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 creation of a doc trine of personality rights in some form, it is necessary to analyze the justifications and gauge whether they are robust rich to validate the subsequent restraints that would be placed upon society. The justifications suggested in support of personality rights fall largely into deuce-ace groups moral, frugal and consumer protection financial statements.The confinement-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 creation, is presumably allowed to enjoy it.23 Professor McCarthy feels personality rights are a common-sense, obvious right needing little intellectual rationalisation to justify its existence.24 However, Madow deconstructs these arguments by contend ing that fame is something conferred by others and is not necessarily d make to the efforts of the individual.25 Moreover according to Madow the labour argument ignoresthe fundamental fictitious character 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 sole(prenominal) when the media and public take notice and attach grandeur 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 o n economic arguments. Economic theory proposes 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 currently without a personality right, and celebrities still gain significant income from their publicity values and failure to introduce such a right in the future will not fire 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 righ ts bone the price of merchandise and advertising in general, placing more wealth in the hands of a select few, who already derive significant income, and away 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 is 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 remove the law and it does not create an image right. It simply applies the vivacious 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 coitus to fictional char acters,39 and indicates that UK courts are 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 less 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 k eep up with sophisticated 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 calamity in the market place. To sum up, without an element of consumer deception, English law in this area remains characteristically cautious,42 and this should be welcomed.1 J. Klink, 50 years of Publicity Rights in the United States and the never Ending chafe 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 May 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 mo Treatise of Government, (New York Liberal Arts Press, 1952)23 M.B. Nimmer, The Right of Publicity, (1954) 19 Law and coeval 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 Ownershi p of Public persona Popular Culture 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 set up 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 archetypal Amendment and Economic Regulations Away from a General 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 much? Is Irvine not enough?, (2009) 20(7) Ent LR 253, p.258.39 J. Roberts, op.cit., p.285.40 S. Bains, 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.