Rihanna Re-cap: Why image rights registration may be in order

The UK Court of Appeals has confirmed what everyone already knew: ‘She is a style icon.’

Rihanna won the appeal made by TopShop, who was held to be ‘passing off’ Rihanna’s image as endorsing their own product. It is important to realize that English law has never recognized ‘image rights’. These decisions were based on the concept that Rihanna’s image is a business asset; and she lost money on that asset because of Topshop’s t-shirt. The trial court relied upon very particular facts and established a general principle that goes against any celebrities who might have hoped to see the beginnings of a general image right. The Appeals Court agreed with the factual findings that Rihanna’s identity has value and with the legal principle that there is no distinct ‘image right’ or ‘character right’ for celebrities. One appellate judge deemed this to be a ‘borderline case.’

How borderline a case? Passing off is proved by establishing the ‘classical trinity’ of elements stated in Reckitt v Colman Borden. Thus, Rihanna had to show that:

1. Does Rihanna have “goodwill” as a “trader”?

Rihanna is cool and world famous. She operates a very large merchandising and endorsement operation. She authorizes her name and image to be used in respect of a variety of goods, including clothing. Some of these items are ‘fashion garments’ rather than traditional merchandising. She has worked with H&M^®, Gucci^®, Armani^® and River Island^® to collaborate on and/or design clothing. The judges were convinced Rihanna’s identity, as a style leader, has a tangible value in the world of high street fashion. She, therefore, has ample goodwill.

2. Was Rihanna misrepresented?

The court deemed the public would buy a t-shirt with Rihanna’s image on it because they thought it was authorized by Rihanna. As fans, they regard Rihanna’s endorsement as important. As she did not authorize this use of her image, her fans were deceived.

3. Did this damage her goodwill?

Yes. One, she loses sales on her ‘official’ merchandise to these knock-offs. Two, she loses control of her reputation in the fashion world. She becomes less exclusive which costs money.

So, Rihanna won, but only because the facts were particularly suited to her complaint. The judge was keen to point out that this case did not concern any debate around, or attempt to develop, an independent image right.

What can other celebrities do to avoid this situation? This case highlights the limitations of current UK law relied upon when attempting to resolve such matters. Other jurisdictions are evolving towards the concept of image rights as personal property. Under the new Guernsey Image Rights Ordinance, a celebrity may register their image. This registration (which is not limited geographically) would immediately capture all present, historic and future images associated with their personality. In the context of the law, ‘image’ is framed extremely widely and means the name of the person and includes almost any representation or characteristic of the personality. Now, celebrities can control every aspect of their image with a few exceptions for fair use. Their exclusivity is theirs to exploit.

The message is clear: if you care about the value of image and wish to protect it, do not rely upon UK legal remedies. Take the positive step of registering those image rights. Registration of personality should be viewed as a desirable and relevant tool to bolster the current, but cumbersome and uncertain bundle of UK property rights.

This note is only intended to give a brief summary and general overview of this area of law. It is not intended to be, nor does it constitute, legal advice and should not be relied upon as doing so. 

Angela is a dual-qualified lawyer (US Attorney and English Solicitor). She is a leading authority on Intellectual Property and was the editor of the International Journal of Intellectual Property Management for several years. Angela is respected academic, having published numerous papers and books and having taught IP at several international universities.

Icondia comprises a team of experts that focus exclusively on the registration and management of image rights for an international customer base. 

To see our comments on the 2013 Rihanna decision click here

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