What do we mean by Image?
When discussing image or image rights we are specifically concerned with the image of a particular person, a particular celebrity or sporting idol, and for example the use of a photograph of that person to endorse a product.
Why would someone want to control this?
With the amount of media coverage celebrities across the UK get it would be an extremely profitable economic right to be able to control the way their image can and cannot be used. Furthermore with the introduction of new media devices specifically using the internet and mobile communication the possibilities to abuse these images have increased dramatically. Celebrities would therefore want to protect their image.
Sporting celebrities are very concerned with this as often their image is used in promotional merchandise by their teams or clubs. If they could control these themselves it could be very lucrative for them.
Does the UK law specifically allow someone’s image to be protected?
There is no specific right to your own image in any statute or neither has one been created expressly in any case law. There are however, case law examples where other intellectual property rights have been established to aid in the protection of an image.
Names – Trade mark registration
Specific case law has stated that celebrities were not entitled to a monopoly over the use of their image and names. In the case of names, celebrities are often able to register such things as their name and signature as trade marks. They are unable however, to register their own image as a trade mark.
Passing Off – False endorsements
A case concerning passing off had the effect of bringing the law of passing off into the realm of celebrity endorsements and created a significant use for it where a trade mark cannot be registered. It was held that false endorsements amount to passing off under UK law.
As it is the case for many celebrities to use their image to endorse various products if a company uses a celebrity image without permission in an advertisement for their product this may result in passing off if the following is proven:
- That at the time of the acts complained of he had a significant reputation or goodwill;
- That the actions of the defendant gave rise to a false message which would be understood by a not insignificant section of the general public that his goods have been endorsed, recommended or approved by the claimant (in this case the celebrity).
Following this case it if a celebrity wants to protect their image from unauthorised use when the use of that image suggests the endorsement of a product the tort of passing off would provide an appropriate remedy. It does not, however, create a right of publicity under UK law.
Independent Television Commission
The Independent Television Commission has stated that impersonating or creating a caricature of a celebrity in an advertisement falls foul of their code and have stated that living people must not be portrayed, caricatured or referred to in advertisements without their permission.
Advertising Standards Authority (ASA)
In the field of advertising the Advertising Standards Authority has strict guidelines which must be adhered to. They state the following:
- Advertisers need to obtain written permission from anyone whose image will be used in a promotional campaign. This is especially important when that person is said to be endorsing that product. This applies to both the actual image of the person or a caricature of that person.
- If this is not adhered to the ASA will contact the company involved to seek a specific remedy.
- If they continue to breach this standard it may result in contact being made by the Office of Fair Trading or Ofcom.
What is the best course of Action to protect my Image?
The issues established using the advertising codes offer protection for the celebrity image being used but if companies are found to have breached these codes they will be liable to the various agencies involved and not directly to the person whose image they have used.
The tort of passing off, therefore, provides the person whose image has been used as a false endorsement with the best course of action.
Is the UK the same as other jurisdictions?
In both Canada and the US there exists a Right of Publicity which provides an individual with the exclusive right over the use and exploitation of their image.
Even in other European Union Member States such as France, Italy, Germany and the Netherlands there are statutory public rights.