Today the High Court confirmed that the English legal system does not recognise the concept of image rights. However, it ruled that Topshop did commit a passing off infringement when it used a photograph of the popstar Rihanna on a t-shirt without her consent. “The mere sale of a trader of a t-shirt bearing an image of a famous person, is not, without more, an act of passing off. However the sale of this image of this person on this garment by this shop in these circumstances is a different matter.” The Honourable Mr Justice Birss.
In the UK there is no specific right to your own image. Instead celebrities and other sporting idols have to rely mainly on the law of passing off to help them protect their image. Under English law, in order to bring a successful passing off claim, Rihanna had to prove that she had a reputation in the UK, that Topshop had made a misrepresentation which led to confusion by consumers and caused Rihanna to suffer damage.
Topshop had used an unapproved photo of Rihanna on a t-shirt purchased from a photographer without her consent. As Rihanna’s business includes licensing of her name and brand for merchandising purposes, her lawyers contended that consumers were deceived into thinking that the t-shirt bearing her photo had been approved by her and therefore Topshop were passing off the t-shirt as part of her branded products. Rihanna’s case was that her goodwill would have undoubtedly been damaged if Topshop had been misrepresenting its t-shirts as official Rihanna merchandising.
Topshop’s lawyers had suggested that Rihanna was attempting to assert the concept of image rights in England (a concept recognised under US law, for example) in bringing the case and denied that there was any misrepresentation. Despite the fact that Rihanna was not a witness, nor had she even been consulted about the Topshop t-shirt in question, Mr Justice Birss found in her favour. He ruled, “To someone who knew Rihanna but did not know her current work, the image is simply one of the person concerned. However to her fans who knew her work, I think this particular image might be well thought to be part of her marketing campaign for that project.”.
The judge went on to say, “The fact it [the t-shirt] is on sale in a high street retailer is neutral. The fact the high street retailer is Topshop is not neutral. The links between Topshop and famous stars in general, and more importantly the links to Rihanna in particular, will enhance the likelihood in the purchaser’s mind that this garment has been authorised by her.”
The result is also bad news for the supplier of the t-shirt who is on the hook for legal fees by way of an indemnity given to Topshop.
How does this affect you?
Anyone involved in branding, retail or merchandising should always think carefully before using images on products. Whilst this ruling makes it clear that there is no concept of image rights under English law, it highlights the importance of ensuring that there is no risk of trade mark infringement or passing off in using an image on a product. Third party image rights, such as the photograph at the centre of the Rihanna case, should always be used carefully and in accordance with a licence obtained from the relevant third party.