Sussex Royal – Brand, Fame and Privacy: an impossible mix?
Sussex Royal –
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 had learned long ago that without some sort of protection in place, their images could be used without their permission.[ii] Others see this as a publicity stunt engineered by Meagan Merkle who wants her celebrity status reinstated without the constraints and duties of royal life.
In my article, Regal Personalities and Royal Images,[iii] I outlined the conundrum that members of the royal have with regard to their status. I revise my conclusion that Queen Elizabeth is a celebrity and revert her status to well-known. They are public figures by birth not by choice. Harry is always quick to point that out. Meagan chose to become a public figure when she chose to be an actress. She chose celebrity. She chose to marry into the monarchy raising her profile significantly. This has not worked out the way she envisioned.
- Well-known or celebrity?
What is the line between a personality being well-known, famous, or a celebrity?[iv] Is there a difference? Yes, there is. Not every famous person is a celebrity. Queen Victoria was a famous person; Princess Diana was a celebrity. Daniel Boorstin defined a celebrity as someone who is famous for being famous – “well-known for his well-known-ness.”[v]A celebrity is a product of the mass media. They are a famous and familiar person. It is the illusion of familiarity that makes a celebrity a celebrity.[vi]
What turns a famous person into a celebrity? The grand answer, according to Neal Gabler, seems to be narrative. “The main reason we want to read about certain individuals in the supermarket tabloids or in People or Vanity Fair, or we want to watch television reports about them on “Entertainment Tonight” or “Access Hollywood” is that we are interested in their stories: In Matthew Perry’s drug addiction, in Tom Cruise’s and Nicole Kidman’s divorce, in the serial romances of Russell Crowe, in Jesse Jackson’s love child, in the Hillary/Bill relationship. Queen Elizabeth and Dick Cheney may have fame, but they don’t have stories. Frankly, if they did, they would be celebrities, too.”[vii] What all these people and things have in common is that they are living out narratives that capture our interest and the interest of the media — narratives that have entertainment value.
Frequently, public figures are considered to having consented to media persecution. They have forfeited their privacy rights. To what degree does a celebrity need to court the public before it diminishes his/her right to privacy? The position of the press stems from a notion that the public has a right to know.[viii] The next question is what exactly falls within this much coveted and regularly demanded public right? Should the intimate details of a public figure’s private life become common knowledge on demand?[ix]
The Duchess of Cambridge experienced this when she first married into the royal family. Remember her topless holiday pictures?[x] Or the photo of Prince George on his way to his first holiday.[xi] “The Duke and Duchess of Cambridge have been warned by a legal expert not to ‘cherry pick’ which privacy cases they pursue, after a paparazzi photo of Prince George was published in a magazine.”[xii] Kensington Palace declined to comment on the photos published in Hello! But Royal sources told The Telegraph that it did not object to the pictures because they were taken “in a public place, without any harassment or pursuit”.[xiii]
This is an enlightening and pointed remark from the Palace as civil actions and prosecutions are easier under the UK Protection from Harassment Act (1997). This law makes it a criminal offence, punishable by imprisonment, for a person knowingly and unreasonably to pursue “a course of conduct which amounts to harassment of another”.[xiv] The test of constructive knowledge is whether “a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.”[xv] Harassment includes causing alarm or distress, and civil actions for damages may also be pursued.[xvi]
The Duchess’s silence appears to be at odds with past objections to ‘private’ photographs taken of her in public places. This has raised the question of whether she is exercising ‘image control’ rather than protecting her privacy.[xvii]
- Image Rights (Bailiwick of Guernsey) Ordinance 2012 – An alternative tool
The Image Rights (Bailiwick of Guernsey) Ordinance 2012 (IRO) offers an alternative and more flexible level of protection to anyone who may need to have their personnage curated. The law provides for the registration of personality and any image rights (including rights in characteristics, mannerisms or traits) unique to that personality. Infringement proceedings can be brought if the personality is used to garner unauthorized economic benefit. The ability to publicly assert, exploit and protect ‘personality’ has now become a property right – i.e. not just something that happens to a person, but something that can be commercially exploited by or stolen from a person. The IRO provides a legal framework which protects both economic and dignitary interests, without having to sacrifice one for the other.[xviii] You control the narrative much more effectively.
The registration of a personality immediately captures all present, historic and future images associated with that personality. In the context of the law, ‘image’ is framed extremely widely and means the name of the person and includes: “…the voice, signature, likeness, appearance, silhouette, feature, face, expressions (verbal or facial), gestures, mannerisms, and any other distinctive characteristic or personal attribute of a personnage, or… any photograph, illustration, image, picture, moving image or electronic of other representation (‘picture’) of a personnage and of no other person …”[xix]
If the personality concerned is capable of expressing something unique by any means, it can be protected as a ‘registered image’ under the law. Moreover, as registered, protected intellectual property, a registered image (or the entire registered personality) can be sold or licensed for the authorized use by others recognizing the value that was hitherto difficult to clearly define and capture.[xx]
The Duke and Duchess of Sussex are recognizable celebrities, now. It is clear that they have personalities capable of expressing something unique. The IRO has special provisions and protections for the Royal family. Section 7, in particular, states: “(1) A personality or image which consists of or contains – (a) the Royal arms, or any of the principal armorial bearings of the Royal arms, or any insignia or device so nearly resembling the Royal arms or any such armorial bearing as to be likely to be mistaken for them or it, (b) a representation of the Royal crown or any of the Royal flags, (c) a representation of Her Majesty or any member of the Royal family, or any colourable imitation thereof, or (d) words, letters or devices likely to lead persons to think that the applicant has or has recently had Royal patronage or authorisation, shall not be registered unless it appears to the Registrar of Intellectual Property (‘the Registrar’) that consent has been given by or on behalf of Her Majesty or, as the case may be, the relevant member of the Royal family.”[xxi]
If Queen Elizabeth were to choose to allow them to register their images, she could. Harry is a member of the royal family whether an active participant or not. His wife has been welcomed into the family along with Harry’s heir. But are they royal enough to require specific permission? Or can they get by on their own celebrity? Either way, I would suggest that each person register as an individual and to also register Sussex Royal as an independent personality reflecting and incorporating each individual personnage.
- How would one balance the rights of free speech and free press with the economic and dignitary interests of the royal-adjacent personnage?
The Royal family treads a fine line between what is invasive and what is not. They would risk accusations of image control if they were inconsistent in their guidance to the media. Allowing unauthorized but happy pictures of the Duchess, but not allowing photographs of a grumpy-looking Duke of Cambridge getting off a train at Cambridge station, sends a very mixed message of what is acceptable.
“Privacy is a very uncertain area of the law. It has ebbed and flowed over the last 10 years, but what previous cases have established is that that there should be a degree of consistency [by complainants]. If you do permit some things and not others it is a form of image control as opposed to a form of privacy.”[xxii] However, “mere newsworthiness is not a free-for-all when it comes to privacy.”[xxiii] Consequently, the balance between ‘the public’s right to know’ and an individual’s right to privacy is an uncertain one.[xxiv] Nevertheless, the right of a public figure to protect his or her image against commercial misappropriation exists and has been afforded legal protection in a vast majority of jurisdictions.[xxv]
Celebrities set up companies to manage this balancing act; although not always successfully. For example, the Diana, Princess of Wales Memorial Trust. The Trustee of her memorial fund attempted to protect the intellectual property rights in her name and image through a series of designated photographs. They believed that by holding the copyright in the photographs they could control her image. This is interesting because the law does not allow copyright in an image, only in the fixation of that image. As such, the attempt to control the quality of Princess Diana memorabilia through copyright failed.[xxvi]
Similarly, the court failed to find a famous mark in a case involving the ‘Diana, Princess of Wales’ moniker.[xxvii] The executors brought an action for trademark dilution against the same company for selling jewelry, commemorative plates, sculptures, and dolls depicting the princess. First, the court determined that for a name to qualify for protection under the Act, it must have acquired secondary meaning. The Trust argued that “because Princess Diana is well-known for her charitable activities, her title has acquired a secondary meaning as to charitable and humanitarian services.” However, the court called that an “absurd contention” because it would mean that “Diana, Princess of Wales” was no longer used to identify the individual, but rather, only her charitable activities. The princess was recognized as a “member of the royal family,” for her “role as a mother,” and for her “image as a fashionable princess.” The court granted summary judgment for the defendants on the dilution claim.[xxviii]
These are very important points to remember, especially since the Sussexes will be living in North America.
Individuals, including members of the royal family, should be allowed to define themselves and to decide how much of themselves to reveal or to conceal in different situations. “A member of the Royal family is not like a politician seeking re-election or a pop star seeking publicity for their new record, but by definition is born into a public duty. This is not about self-interest and the publicity that Royalty is exposed to is in our service not theirs – it brings us together as a nation and gives us a greater depth to our national life, so that existing is not simply about earning a living and consuming products, but is given a depth of history, tradition, and unity. So, the purpose of Royal publicity is the national interest. Therefore, the usual, vengeful urge to undermine and destroy should not apply.”[xxix]
As Jeffrey Rosen notes, privacy is a form of opacity, and opacity has its value. We need more shades, more blinds and more virtual curtains. By respecting the boundaries between public and private speech and conduct, a liberal state can provide sanctuaries from the invasions of privacy that are inevitable in social interactions.[xxx] “If a publisher found itself fighting a privacy case brought by a member of the Royal family in the future, the argument you would use would be that it’s not about a right to privacy, it’s about them controlling their image.”[xxxi]
If the Queen truly wants to protect her image and that of their family, then she should take a close look at the Guernsey Image Rights Ordinance. It would be an ideal way for her to protect all aspects of her personality and that of her heirs, now and forever. If the Queen is not above the law, then neither should the law be beneath her.
© Icondia 2020
[i] Formerly, His Royal Highness, Henry Charles Albert David, the Duke of Sussex. His titles are Duke of Sussex, Earl of Dumbarton, and Baron Kilkeel. The Queen has removed the title His Royal Highness.
[ii] See, Cairns v. Franklin Mint Co. 24 F. Supp. 2d 1013 (C.D. Cal. 1998); Cairns v. Franklin Mint Co. 107 F. Supp. 2d 1212 (C.D. Cal. 2000)
[iii] Adrian, A (2014) Regal Personalities and Royal Images: Protecting the private lives and public personas of the Royal Family, available at http://www.icondia.com/library/regal-personalities-royal-images-protecting-private-lives-public-personas-royal-family/
[iv] A similar distinction is made in trademark law. See i.e., Mostert, F (1997) Famous and Well-known Marks: An International Analysis. London: Butterworths
[v] Boorstin, D (2012) The Image: A Guide to Pseudo-Events in America. 50th ed. New York, N.Y.: Random House
[vi] Schickel, R (1985) Intimate Strangers: The Cult of Celebrity. Garden City, N.Y.: Doubleday
[vii] Gabler, N. (2001) Toward a New Definition of Celebrity THE NORMAN LEAR CENTER, University of Southern California Law School
[viii] Edward RocknRoll v News Group Newspapers Ltd  EWHC 24
[x] Rayner, G & Samuel, H (2013) Woman photographer and publisher charged in probe into topless pictures of Duchess of Cambridge in France, The Telegraph available at http://www.telegraph.co.uk/news/uknews/kate-middleton/10016407/Woman-photographer-and-publisher-c harged-in-probe-into-topless-pictures-of-Duchess-of-Cambridge-in-France.html
[xi] Gander, K (2014) The Duke and Duchess of Cambridge warned not to ‘cherry pick’ privacy battles, The Independent available at http://www.independent.co.uk/news/uk/home-news/the-duke-and-duchess-of-cambridge-warned-not-to-ch erry-pick-privacy-battles-9107518.html
[xiv] Protection from Harassment Act (1997), s 1(2)
[xvii] Gander, K supra
[xviii] Adrian, A (2014) Image is Everything: The New Image Right of Guernsey, available at http://icondia.com/wp-content/uploads/2014/01/Image-is-Everything.pdf
[xix] The Image Rights (Bailiwick of Guernsey) Ordinance 2012, s3(1)(b) and (c)
[xx] Adrian, A. supra at 15
[xxi] The Image Rights (Bailiwick of Guernsey) Ordinance 2012, s7 (emphasis added)
[xxii] Raynor, supra citing Chris Hutchings, a privacy expert with the law firm Hamlins.
[xxiii] Edward RocknRoll v News Group Newspapers Ltd  EWHC 24
[xxiv] Barendt, E (2012) Freedom of speech and privacy, available at http://freespeechdebate.com/en/discuss/freedom-of-speech-and-privacy/
[xxv] Adrian, A supra
[xxvi] Cairns v. Franklin Mint Co. 24 F. Supp. 2d 1013 (C.D. Cal. 1998)
[xxvii] Cairns v. Franklin Mint Co. 107 F. Supp. 2d 1212 (C.D. Cal. 2000)
[xxix] British Monarchist Society, October 2014
[xxx] Rosen, J (2000) The Unwanted Gaze. New York: Random House
[xxxi] Raynor, supra citing Chris Hutchings, a privacy expert with the law firm Hamlins.