How to turn 15 minutes of fame into your destiny. Register it!

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 searching, scanning, storing and repurposing these images to draw insights for big-brand advertisers.” (MacMillan & Dwoskin, 2014) You, the non-celebrity, are now a commodity too.

1          Image Rights aka Publicity Rights or Personality Rights

The perception of our own person is what imbues us with ‘personality’ in the eyes of others (Adrian, 2010). This personality is inevitably unique and therefore distinctive to the individual concerned. If that person is a recognized celebrity then, almost certainly, there is value to others in being associated with that personality. This value, and the rights associated with it, is generally what are known as “image rights.”

Image rights are an integral part of expression, whether that is expressed by a celebrity or by you. The famous and wannabe famous work very hard to commercialize their image. The commercial appropriation and/or exploitation of a person’s identity and associated images linked to that person is deemed to be an infringement of image rights. A new breed of YouTube stars has learned that they too can enjoy an income from commercializing their personality. Just ask Bethany Mota, an internet personality who is on Dancing with the Stars, Season 19. This is the best publicity she has ever had.

Carl Jung wrote about personas: a mask is an essential part of our personality which is fashioned according to the necessity of complying with cultural requirements (Campbell, 1972). Individuals are encouraged to create their personas according to mass media standards. Ordinary people are creating personas for themselves just like celebrities do. These personas reflect not only themselves but what they choose to be associated with. (Walsh, 2004). A short sample of the moniker changes of celebrities shows a rather predictable fact that when authors and celebrities adopt new symbols to identify themselves, they pick better brands: shorter, more memorable names with more appealing connotations.

Fabricated monikers include Woody Allen (Allen Konigsberg), Alan Alda (Alphonso D’Abruzzo), Tom Cruise (Thomas Mapother IV), Bob Dylan (Robert Zimmerman), Cary Grant (Archibald Leach), Elton John (Reg Dwight), Ricky Martin (Enrique Martin Morales), George Orwell (Eric Blair), Martin Sheen (Ramon Estevez), Ringo Starr (Richard Starkey), Sting (Gordon Sumner), and Mark Twain (Samuel Clemens). For more examples, see Nom de Guerre, http://go.to/realnames.

Another interesting example is Prince Rogers Nelson, who was formerly known as ‘Prince’. He changed his name to a symbol defying conventional articulation. Significantly, it has the benefit of being registered as a trademark and also subject to copyright protection, unlike the vast majority of personal names. Judge Posner explained: “The defendant, identified only as ‘Prince’ in the caption of the various pleadings, is a well-known popular singer whose name at birth was Prince Rogers Nelson, but who for many years performed under the name Prince and since 1992 has referred to himself by an unpronounceable symbol reproduced as Figure 1 at the end of this opinion. The symbol is his trademark but it is also a copyrighted work of visual art that licensees of Prince have embodied in various forms, including jewellery, clothing, and musical instruments.” Pickett v. Prince, 207 F.3d 402, 403 (7th Cir. 2000).

Publicity is something everyone needs to get their message across to a large audience. But do you have any rights in it? Can you control it? Are you newsworthy? Scandal-worthy? When do you become a public figure and lose your right to a private life? How do you stop a company from associating your image with their products without your permission? Likewise, how do you promise a company that you will only endorse their products?

The answer in the past has been by contract. Many stars already have contracts in place regarding the use of their image rights. The irony is that image rights do not exist as such in English law. Publicity rights laws in the United States are regulated on a state by state basis. Much depends on what action is taken in which jurisdiction. The results are patchy. Until recently, there were no processes by which one could publicly assert, exploit and protect their image rights via registration. Instead, there was a dependence upon the use of laws which sought to protect specific types of intellectual property, but none were specifically designed for protecting image rights. Now through registration, ‘personality’ has become a property right – i.e. not just something that happens to a person, but something that can be commercially exploited by, but also stolen from, a person (Adrian, 2012). The Guernsey Image Rights Ordinance provides a legal framework which protects both economic and dignitary interests, without having to sacrifice one for the other.

2          The Image Rights Ordinance (‘IRO’)

All present, historic and future images associated with a personality can be immediately captured by registration. If a personality is capable of expressing something unique by any means, it can be a protected image under the IRO. Moreover, as registered 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.

2.1       Registered Personality – Legal Definitions made simple

Once your personality is registered, you obtain a property right (s 2(1) IRO). Personalities, also known as personages, can be any of the following (s 1(1) IRO):

(a) a natural person (who is alive like Benedict Cumberbatch or who dies within the last 100 years like Alan Turing; s 1(5) IRO);

(b) a legal person (any corporate or legal entity currently in existence or existed within the last 100 years, like Berretta or DeLorean; s 1(6) IRO);

(c) two or more natural persons or legal persons who are or who are publicly perceived to be intrinsically linked and who together have a joint personality, like Laurel and Hardy (‘joint personality’; s 1(3) IRO);

(d) two or more natural persons or legal persons who are or who are publicly perceived to be linked in common purpose and who together form a collective group or team, like Arsenal or Van Halen (‘group’; s 1(3) IRO); or

(e) a fictional character of a human or non-human, like Hatsune Miku or Hello Kitty (‘fictional character’; s 1(4) IRO),

Images include legal names as well as stage names, voice, signature, likeness, appearance, silhouette, feature, face, expressions   (verbal or facial), gestures, mannerisms, and any other distinctive characteristic or personal attribute, or any photograph, illustration, image, picture, moving image or electronic or other representation (s 3(1) IRO).

Note that there is no requirement to register specific images associated with the registered personality beyond the personality’s name itself. However, for there to be a benefit in registering and for easier enforcement, specific images are useful. A registered image is presumed to be distinctive and of value, which are requirements for infringement, whereas these qualities must be specifically proven in order to enforce rights in an unregistered image.

2.2       The Image Rights Register (IRR)

The IRO is intended to operate in conjunction with a searchable database, – the IRR. The IRR is operated and maintained by the Guernsey Intellectual Property Office. Public access can be obtained by creating a simple username and password account. The consequences of registering effectively put the world on notice that their personality and any associated images are registered and protected by law. This ensures that unintentional infringements do not occur.

Each week applications for registration are published on the ‘Journal’ section of the Register website and are viewable for twenty working days to allow for any objections. If none, the application is approved. As a practice note, there is no requirement to register specific images associated with the registered personality beyond the personality’s name. Nonetheless, for greater and easier enforcement, specific images are encouraged. There is a presumption that registered images are distinctive and of value, as these are requirements for infringement claims and must be specifically proven in the cases of unregistered images. Consequently, damages will not be awarded where the defendant proves that at the date of infringement he had no knowledge nor any reasonable grounds for knowing that the image was a registered personality’s image. These conditions do not apply to registered images.

3          This is a whole new category of intellectual property.

This is also a whole new way of thinking about one’s self. Existentialism is out of philosophical favor at the moment; however, it provides an interesting paradigm to consider one’s individual personality and how it should be protected (Adrian blog, 2015). By determining the acts that constitute oneself, one makes one’s existence more significant. Frank Outlaw is attributed with saying it best:

“Watch your thoughts, they become words;
watch your words, they become actions;
watch your actions, they become habits;
watch your habits, they become character;
watch your character, for it becomes your destiny.”

(http://quoteinvestigator.com/2013/01/10/watch-your-thoughts/)

Substitute ‘personality’ for ‘character’ and it becomes clear why registering your personality is the first step to protecting your destiny. The paradigm has become a paradigm shift.

References:

• Adrian, A (2015)
• Adrian, A (2014) Saucy Fish Company available at
• Adrian, A (2013) Economic and Dignitary Rights
• Adrian, A (2010) Law and Order in Virtual Worlds: Exploring Avatars, their Ownership and Rights. Hershey, PA: IGI Global
• MacMillan, D & Dwoskin, E (2014) Smile! Marketing Firms Are Mining Your Selfies Photo-Sharing Sites Are Being Scanned to Find Brands, Target Ads, The Wall Street Journal.
• Warhol, A (1968) Program for an exhibition of his work at the Moderna Museet, Stockholm, Sweden.

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.

For further information visit www.icondia.com.

© Icondia 2015