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

Abstract: In 2012, Guernsey established the world’s first image rights registry, allowing celebrities to commercially exploit not just their face but also their catchphrases, mannerisms and gestures. Usain Bolt[1], for example, is able to register his victory lightning pose to stop unscrupulous advertisers anywhere in the world from hawking their wares using an image of a black man in running gear pretending to be Raijin.[2] Intellectual property experts argue that current intellectual property laws fall short of protecting a person’s image and trade value. Guernsey, a major player in the wealth management industry, is well placed to implement legal structures which allow famous people an opportunity to benefit financially from their image and personality. This research will compare... 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

Abstract Virtual worlds were once thought to be the future of e-commerce. Avatars in virtual worlds embodied your identity and were your trademark. Facebook has created a program called DeepFace which can pick a face out of crowd with close to human accuracy. Your face is your identity, can it be trademarked? Trademarks, more than other species of intellectual property, are one step further from tangible property. Every kind of intellectual property requires participants to acquire value. What makes trademarks different is that they require participants to acquire meaning. This article deals with the complex problem of creating intangible property interests in symbolic systems and online persona and whether a better means of protection would be image rights.   Download the fu... Read More

Further to our news item on Katherine Heigl last month, Benjamin Stein provides an update and comment on this case. His comments in the last paragraph make good advice for any company considering using fortuitous or opportunistic marketing material.   Searching the the Image Rights Register should be standard procedure as part of the due diligence on prior rights. For more information on the registration of personality, visit icondia.com 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

Abstract: The single most valuable intangible asset in a fashion business is the brand. It comprises between 50 – 60% of the company’s value.  The best method to capitalize on this value is to create unique images and define clear brand strategies. This is important both from a consumer point of view as well as the fashion house’s perspective. Fashionistas invest in brands. They want to be aligned with an image. How can brands garner consumer esteem? Copyright law would need to be extended to include fashion. Trademarks may not be enough protection. Guernsey’s Image Rights Ordinance and Registry may be able to solve this dilemma. Download the full insight Read More

Actress Katherine Heigl has decided to sue US pharmacists Duane Reade for unauthorized use of her image.  In a guest post for Forbes Magazine,  Andrew Udin has provided some insight into this decision and comments on the likelihood of success. Udin makes two points well:  that under US law, the right to privacy is the same for celebrities as it is for anyone else and also that – in the eyes of the retailer at least – a social media presence has value.  Both points are relevant to the concept of Registered Personality as facilitated by registration on the Guernsey Image Rights Register.  The law is not predicated on privacy rights but on the more straightforward question of unauthorized economic benefit by others, using images (any images) of the registered personality.  Moreov... 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