Commentary

Artificial Intelligence (AI) encompasses any computer-aided technology that simulates human intelligence, including machine learning, deep learning, and neural networks. Its application is extensive and spans both personal and professional contexts. Recently AI technology has exploded with the release of products such as DALL-E[i], the art tool Stable Diffusion, and MidJourney. These platforms have created much controversy regarding intellectual property, specifically copyright and fair use/dealing. However, another form of intellectual property should be considered – Image Rights. Previously, Icondia considered the use of AI for deep fakes and filmmaking, where it is clear that a person, and hence their personality and identity, had been altered.[ii] But how far does a personality exte... Read More

The world of artistic expression was once perceived as a marketplace in which resources were scarce. Jean-Luc Godard (December 3, 1930 – September 13, 2022), the famed French-Swiss New Wave cinematographer, opined about cinema, “When I die, it will be the end.” Godard passed away in September 2022.[1] His artistic expression in film endures. Carrie Fisher (October 21, 1956 – December 27, 2016) probably had the firmest grasp on this concept that her artistic portrayal of Princess Leia will endure. She said as much during her speech for George Lucas at the AFI Lifetime Achievement Awards.[2] Her passing caused an unprecedented stir in Hollywood – most notably due to the reprisal of that her role in 2015’s Star Wars: The Force Awakens and in speculation over her character’s retu... Read More

Sussex Royal - Introduction Prince Harry[i] and Meagan Merkle have stepped away from their duties as senior royals to live a less public life in Canada. They claim to have done this because their lives were mercilessly exposed to glaring unwanted publicity. They fear for their own safety and that of Master Archie, their son.  Needless to say, this raises numerous legal questions.  The focus here will be on the image rights of the new family – Sussex Royal. This departure by Prince Harry has been nearly a year in the making. The trademark – Sussex Royal -was filed back in June of 2019.  Many considered this to be a prudent move in line with the actions that the Duke and Duchess of Cambridge took to protect their potential intellectual property rights.  The royal family h... Read More

Once again an artist’s work is being exploited by someone other than the artist.[i]  Street artist Banksy is about to lose his rights in his artwork. Because his work is somewhat fleeting in nature, his work is graffiti on public buildings, the copyright in the work is somewhat fleeting as well.  To safeguard his name and work, Banksy registered a stylised representation of his name with the European Union Intellectual Property Office in 2018.[ii]  He also registered a number of his famous works as trademarks.  Currently, his “flower bomber” mark is under attack by Full Colour Black, a company that “specialises in the commercialisation of world-famous street art.” How can Banksy protect himself and his works?  The Guernsey Image Rights legislation would be an ideal soluti... Read More

First, actress, Katherine Heigl sued New York City-based drugstore chain Duane Reade for $6 million for tweeting a paparazzi image of her carrying two Duane Reade shopping bags, along with the following text: “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.” She alleges Duane Reade “misused and misappropriated [the] photograph for its own commercial advertising, distributing the photo with Duane Reade’s own promotion slogans on its Twitter and Facebook accounts, all without Ms. Heigl’s knowledge or approval.” Second, model, Sofia Richie has been sued by Backgrid celebrity photo agency for posting pictures of herself on Instagram. Backgrid is claiming copyright infringement on several of the images which Ms. Richie shared wi... Read More

The Role of Image Rights to Corporate Entities - The Case of the Black Cab Most successful businesses tend to become incorporated entities. Image rights, although initially a personal concept, have expanded to encompass legal entities, and can now be treated as a separate class of intellectual property rights - one that provides a safety net to all other intellectual property rights. On November 1, 2017, the English Court of Appeal [2017] EWCA Civ 1729 rejected the London Taxi Company's (LTC) appeal against a finding that the 3D trademark and design right were invalid. The Court held that the city's famous black cabs lack distinctive character. Had the LTC registered their image rights in Guernsey under the Image Rights Ordinance 2012 (IRO), they would have been protected from the in... Read More

The passing of Carrie Fisher (October 21, 1956 – December 27, 2016) has caused an unprecedented stir in Hollywood - most notably due to the reprisal of her role as Princess Leia in 2015's Star Wars: The Force Awakens and in speculation over her character's return in yet-to-be-filmed episodes. Filmmakers have been utilizing advances in digital technology to resurrect characters after a performer dies. Another from the Star Wars cannon, Grand Moff Tarkin, originally played by long-dead actor, Peter Cushing, was recreated in the recent Rogue One: A Star Wars Story. I would like to pause here and quote her speech at the 2005 AFI Lifetime Achievement Awards ceremony. The award was being presented to George Lucas. "Hi, I’m Mrs. Han Solo, and I’m an alcoholic. I’m an alcoholic be... Read More

What do you do when your entire company is built around one product – one image – one personality? An iconic personality, or perhaps just a well-known image within its own sphere of influence. You have followed all of the rules and laws so that you can protect this property, then the Court rules that, in fact, you do not have such protection. This has happened to the Rubik’s Cube and to Lego blocks. Their three-dimensional trademarks failed them. For years, they had believed that their registrations protected them. Only to discover that when a copycat arrived on the scene and complained, their intellectual property rights actual meant nothing. For more than twenty years and in various jurisdictions, LEGO has been trying to protect its LEGO bricks and related product lines using... Read More

Barely a fortnight has elapsed since the passing of Prince and already details are emerging regarding what could be one of the biggest examples of failing to plan ahead for the exploitation of image rights following the death of a celebrity. Prince Rogers Nelson left no will, which hugely increases the likelihood for dissent and opportunism amongst those that think they may have some claim against his estate.  Reports suggest his estate is currently worth $300 million but the real value of Prince’s legacy may be those fees yet to be earned from future exploitation of his image.  Prince’s personality checks all the boxes in terms of supremely exploitable image rights: he was still hugely popular at the time of his death, his audience is global, his style was quirky, unique and an... Read More

In a widely reported story this week, Russian photographer Egor Tsvetkov provided evidence in a paper entitled 'Your Face is Big Data' as to just how easy it is to identify individuals from photographs posted on line.   Using the face-recognition website Find Face, Tsvetkov was able to discover extensive personal information about many of the otherwise anonymous photos he had taken. Cara McGoogan’s article in the Telegraph provides one of the more detailed descriptions of Tsvetkov’s findings. This is not just a privacy issue.  Big companies are already masters of Big Data and as this type of facial recognition software improves – as it inevitably will – it will mean that targeted advertising becomes even more widespread and specific.   No longer will it be based on your phy... Read More