Insights

How the Guernsey Image Rights Ordinance interacts with the US doctrine of preemption?

By Dr Angela Adrian

Abstract: How does the Guernsey Image Rights Ordinance interact with the US doctrine of preemption? When a state law threatens to encroach on a federal law, such as the Copyright Act, the court must consider whether the federal law preempts the state law claim. Guernsey image rights involve the commercial protection and exploitation of a person’s identity and associated images linked to that person, in a similar manner to the right of publicity. Generally, courts have found that a persona does not fall within the subject matter of copyright. The “work” that is the subject of the right of publicity is the persona, i.e., the name and likeness of a celebrity or other individual. A persona can hardly be said to constitute a “writing” of an “author” within the meaning of the Copyr... Read More

Doyle’s Dilemma

By Dr Angela Adrian

What does it mean to be a Celebrity? Or a Personality? There was a time when the answer to that question was fairly clear to most people. However, the technology boom that began during the second half of the 20th century changed all of that, and the laws regarding the protection of a person’s name, portrait, picture, likeness, or voice have struggled to keep up with the evolving media in which these types of intellectual property can be exploited. In the United States, the term “right of publicity” was coined in the decision Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953). However, the first state to pass a law prohibiting the use of a living person’s “name, portrait or picture” was New York in 1903.1 Download full insight Read More

Privacy is dead; Long Live Privacy: Cloud Computing, Big Data, and Privacy

By Dr Angela Adrian

Abstract: The internet is an intrinsic part of our daily life. No longer do we go online to work, play or purchase; we are now in a world where everyone and everything simply is online. Cloud computing is the standard operating process, communications system and underlying infrastructure of the internet. These technological developments have produced incursions into the private space of people, with serious impacts on privacy for the individual, communities, and society. This is of paradigm- shifting significance to the law as it changes the way in which information is managed, especially where personal data processing is concerned. This poses the question: Does privacy still matter? This paper will address the privacy concerns intrinsic to both big data and cloud computing. Download th... Read More

Image is Everything™: The New Image Right of Guernsey

By Dr Angela Adrian

Abstract: Image rights involve the commercial appropriation or exploitation of a person’s identity and associated images linked to that person. They are related to the distinctive expressions, characteristics or attributes of, or associated with, a personality made available to public perception. Image rights are an integral part of artistic expression and a product of celebrity or sporting achievement in the twenty-first century. Image Rights (Bailiwick of Guernsey) Ordinance establishes a new form of intellectual property, previously unrecognized in a registrable form. Two key concepts anchor the legislation: (1) the “registered personality”, and (2) “images” which are associated with or registered against that registered personality. The core right is the registered personalit... Read More

Avatars Inc. – The Legal Personality of Avatars

By Dr Angela Adrian

Digital technology is detaching information from the physical plane, where property law of all sorts has always found definition. Virtual world property is, likewise, detached from the physical plane. Historically, intellectual property law concentrated not on ideas, but on the expression of those ideas. The ideas themselves were considered to be the collective property of humanity. To express an idea was to make it physical. The law protected the physical expression. One did not get paid for the idea but for the ability to deliver it into reality. The value was in the conveyance and not the thought conveyed. In other words, the bottle was protected, not the wine (Barlow, 2004). Download full insight Read More