Commentary

Andy Warhol (1968) is famously quoted as saying: “In the future, everyone will be world-famous for 15 minutes.” Everyone has the possibility of becoming a celebrated personality. When you become a celebrity; you become a commodity. The commoditization of image has real value, both directly - for the individual concerned - and indirectly, in terms of generating income for firms specializing in hosting social media (Adrian, 2013) What about all of the people who do not deem themselves to be celebrity, yet share their life publicly on the internet? “Most users of popular photo-sharing sites like Instagram, Flickr and Pinterest know that anyone can view their vacation pictures if shared publicly. But they may be surprised to learn that a new crop of digital marketing companies are sear... Read More

There are few nations for whom the cult of personality matters more than Russia. A nation, shaped profoundly by powerful leaders across the ages, instinctively recognizes the cultural and political importance of strong images. If a picture is worth a thousand words, then the modern icons of Russia are worth millions of rubles. Copyright has been the traditional tool to protect the value inherent within an image – but the digital age has brought new challenges in the way that images are used. One jurisdiction has met this challenge – Guernsey. It has an established track record of introducing innovative, successful legislation. The Image Rights Ordinance (IRO) continues this by being at the forefront of modern intellectual property practice. The IRO allows people to take control of n... Read More

Mention Hatsune Miku to most Europeans and you’ll probably receive a blank stare. I admit it – until not so long ago I was one of them. Mention Hatsune Miku in her home country of Japan however, and it will be difficult to find someone who hasn’t heard of her. So - who is she and why does she matter? First and foremost let’s define exactly what ‘she’ is. With a cursory search, you’d probably come to the conclusion that she’s an anime character popular amongst her target market of Japanese teenagers. You might even pick up on the fact that she’s also an avatar. Look a little deeper though, and the history is more interesting. The genesis of Hatsune Miku lies in her voice, or more specifically the way it is created. In 2000 Yamaha backed the development of what became... Read More

Every now and then an article comes along that neatly illustrates what one has long suspected. Such is the case with an article by Douglas Macmillan and Elizabeth Dwoskin that appeared in the Wall Street Journal earlier this month. It’s a very nice demonstration of just how intensively our personal data is being mined and our images appropriated for commercial gain without our knowledge. Data mining is nothing new, but image recognition software is increasingly able to scan online personal photographs for items as specific as brand logos, fashion accessories, devices and even emotions conveyed on the faces of those photographed. The sheer scale is awesome: for example Instagram reportedly has more than 20 billion images shared with 60 million being added daily. People consistently fail... Read More

Introduction A ‘eureka’ moment is the moment of sudden unexpected discovery. Consider Amazon CEO Jeff Bezos and how he dropped his mobile phone causing a ‘eureka’ moment which he, in turn, patented in the form of mini airbags that deploy if you drop your mobile phone. The similar concept of serendipity is used in a variety of knowledge formation processes. According to the Oxford English Dictionary, serendipity is the manifestation and development of events by chance in a happy or beneficial way. The DC circuit court, in California Research Corp. v. Ladd, 356 F.2d 813 (1966), held that “serendipity is consistent with patentability.” Likewise, serendipity is consistent with copyright goals of fixation in relation to authorship. Consider the case of David Slater and his mac... Read More

Last month we tweeted a link to an article written by Pete Hackleton and promised to revisit this with our own comments. In his article, Hackleton provides a neat history of how image rights structures have evolved over the last two decades and how the current status quo with HMRC was arrived at. Two things emerge from the article very clearly: firstly that the value of image rights can often be much more than the performance fees and secondly the nature and commercial reality of the licensing structure(s) is crucial to it proving acceptable to the taxman. Any doubts about the magnitude of image rights is convincingly removed when Hackleton points out that David Beckham’s total contract value over his four year contract with Real Madrid, was recouped during just six months worth of shirt... Read More

Earlier this year a website for start-up company Eterni.me went live. “So what?” you might ask. Eterni.me, however, is company dedicated to providing a virtual personality that will survive the death of the real person on which it is based, and with which people can continue to interact afterwards. If that sounds a little strange, consider the fact that over 20,000 people registered on this site within the first month of it going live. Either you conclude that there are at least 20,000 strange people out there (always possible) or else you accept that 20,000 potential customers is a convincing demonstration that there really is a desire to recreate a loved one in this way. If – like me – you fall into the category of finding this a little spooky, then perhaps we should look back... Read More

My colleague Angela Adrian recently wrote about the ongoing battle between cosmetics company Lush and the mighty Amazon, in respect of the damage that keyword searches can do to a registered trademark.  The point was serious, but the battle between the two companies is proving entertaining in the extreme.  Vincent Teh of Kass International has provided perhaps the most succinct account of this David v Goliath battle: “Lush, an independent cosmetics company in the UK, had applied to register the name of the UK boss of online retail group, Amazon, as a trademark for its new range of toiletries. This peculiar branding strategy is a result of a three year long feud between the two companies over the misuse of Lush’s trademark by Amazon. Lush had complained about latter’s use of the... Read More

Mat Honan of Wired Magazine wrote an article for Gadget Lab entitled 'The Username Is a Relic. Here’s How to Fix It' on 19 February 2014. In it he argues that notwithstanding the fact that we are all just a string of numbers on a computer, usernames used in isolation are obsolete and must be used in conjunction with other identifiers.  Can we protect our online personalities by registering them in an Image Rights Registry? Can our Usernames be deemed to be images? Mat makes an excellent point here. No one can rely on a single item of data to uniquely identify oneself. For our own uniqueness to be meaningful it requires context. We are made up of combinations of what is otherwise non-unique data. I am a short blonde female with blue eyes called Angel born on April 23rd at 4.03 am. Alt... Read More

Trademarks are an aspect of corporate personality. Image rights involve the commercial appropriation or exploitation of a personality’s identity and associated images. Amazon and other search engines use these names and images as “Adwords” to encourage consumers to click on related items. This, in turn, diminishes the value of a trademark and causes it to become too closely associated with a certain class of goods. In Cosmetic Warriors Limited & Lush Limited v Amazon.co.uk Limited & Amazon EU SARL, [2014] EWHC 181 (Ch), the Judge found Amazon had infringed the registered Community Trade Mark for “LUSH” under Article 5(1)(a) of Directive 2008/95/EC. The infringement stemmed from Amazon’s directing consumers to the sale of equivalent products to those sold by Lush thro... Read More