What’s the difference between an Avatar and an Avatoid?
The term ‘Avatoid’ is used by Iain Banks in his Culture SF novels.
We use the term as a useful distinction between two fundamentally different types of avatar. An avatar is essentially a passive construct designed to represent the human creator(s), whereas an avatoid is an actively evolving construct effectively independent of its original creator(s). In personality terms, one can define an avatoid as an avatar that has taken on the real personality traits of the human(s) that created it and whereby those personality traits have evolved to become uniquely those of the avatoid.
For example, avatars range from simple graphic representations typified by forum users to the sophisticated constructs representing residents of Second Life and such like. In contrast, an example of an avatoid would be Hatsune Miku, a vocaloid character created by Crypton Future Media Inc. who has evolved independently from any one creator and who transcends various media.
Why may Copyright &/or Trademark law not sufficiently protect my Image Rights?
In the case of copyright, it is the person who created the work (e.g. took the photograph, painted the picture, wrote the book, etc.) who enjoys protection – not the subject of the work. Unless you have been careful to acquire the copyright of any photos taken of you, it is the photographer who has the right to exploit and benefit from those, not you. However – if you are a Registered Personality, then (subject to certain exceptions) you are likely to have considerably more control over who can profit from the use of your image.
Trademark law is designed to demonstrate the origin of manufactured goods of services. There may, however, not be a relationship between the “owner” of the images used on a good and the person who makes the goods. For example, it may be clear that a particular poster of Andy Murray is not authorized by, and does not originate from, the Scottish tennis star – perhaps it’s a really cheap-looking poster or unflattering photo that Andy clearly wouldn’t want marketed. In these circumstances his image is not being used as a trademark (designation of origin); and the fact that he has registered himself as a trademark will not give him any protection.
Similarly, Arsenal FC was unable to prevent the unauthorized sale of memorabilia bearing the Arsenal FC logo right outside of its stadium! (See Arsenal Football Club v Mathew Reed  3 All ER 865). Guernsey’s Image Rights law is specifically designed to address this kind of situation. Trademark protection is also limited to the goods and services specified in the application. Registration in each additional category costs extra. Trademark protection may not therefore keep up with a brand that is evolving and developing into new directions. Image Rights registration is far more flexible in this regard. Traditionally registered trademarks have been limited to static images (such as words, a logo or graphic design). As such, trademark law is not well-suited to the modern requirements of image rights where a variety of aspects of your personality may become distinctive, and valuable.
Until now the protection of image rights has involved trying to find a way to make traditional intellectual property laws apply, none of which were designed to specifically address image right protection. These traditional legal remedies were often ill-suited to halting unauthorized commercial exploitation of a person’s distinctive personality traits. Sometimes it worked. Often it didn’t. Without doubt the Image Rights Ordinance used by Icondia represents the most up-to-date and specific legal protection currently available anywhere in the world.
To what extent does this law protect my Image Rights outside of Guernsey?
The law is limited to the legal jurisdiction of Guernsey. However, the carrying of a decision from one legal jurisdiction to another is nothing new and courts have had to consider the merits of a judgment granted in one jurisdiction and whether it should be upheld in a different jurisdiction for as long as questions of international law have existed. In that respect, the Image Rights Ordinance is no different. Importantly, the law has been drafted to be fully compliant with the various international intellectual property conventions. As such, there is nothing in the law that should prevent it being upheld in other jurisdictions.
Will another jurisdiction be obliged to automatically follow an award in Guernsey?
No – other jurisdictions are under no obligation to follow the decisions made in Guernsey. In each case it will depend on the local laws relating to the enforcement of foreign judgments in that country. These differ. Where, however, a judgment against infringement is unopposed, it is reasonable to suppose that a foreign jurisdiction will choose to automatically uphold the Guernsey decision, but there is no guarantee of this. If financial damages are included as part of a judgment, mechanisms do exist in many jurisdictions to uphold such orders. California, for example, has laws that in our opinion would make it very likely that any financial award made under the Guernsey law would be upheld in California. This is explored more fully here.
What is the point of registering in Guernsey?
- It is currently the only law in the world that creates a registered property right derived from personality. The benefits of creating this type of property right include use in licensing arrangements and being able to bequeath your image rights.
- Registering with Icondia also adds to the weight of evidence that your image is important and valuable to you. This may be relevant and helpful when trying to use traditional intellectual property rights to address unauthorized commercial exploitation of your personality in other legal jurisdictions, as it gives you a registered publicity right.
- First mover advantage: There is always the possibility of two people using the same or similar characteristics. Similar to trademark and patent registration, the Image Rights Register works on the basis of ‘first come, first served’.
How many versions of my image will I have to register to be sufficiently protected?
That’s not how the law works. Simply by becoming a Registered Personality, all of your past, present and future characteristics are potentially protected from the date that you first registered. You don’t have to register multiple ‘images’ at the outset. If you subsequently wish to claim an infringement, you will have to demonstrate that the image in question was (is) unique to you, and is valuable. Having proven this, protection of that aspect of your personality is effective from the date you first became a Registered Personality. The advantage of registering an ‘image’, is that when you claim infringement, the image is already presumed to be valuable and distinctive, and so entitled to protection. The onus then shifts to the defendant to prove this is not the case.
Who owns my Registered Personality &/or Images?
It’s your choice. Unless you specifically request otherwise, you do. You can either be the registered owner, or you can have Icondia hold these rights for you in a protected cell via our subsidiary company, Image PCC Ltd. In either case, you are the owner of your Image Rights. Image PCC provides the benefits of limited liability protection at minimal cost, whilst at the same time ring-fencing your image rights from every other client’s assets. It also means that Icondia can subsequently manage your Image Rights more effectively for you. Please contact us if you would like further information about this option. We can also arrange for ownership to be registered within any existing holding structures you may have. Remember, ownership details and information about holding structures will not be disclosed on the Image Rights Register.