Is there a right to protect your image under UK law?
For famous people – athletes, actors, singers, footballers, etc – their image can be a valuable commodity. By lending their face to a product as a means of endorsing it, they can rake in huge sums while at the same time increasing the sales and profile of the brand they choose to promote. Naturally, they want a means of protecting their right to use their image as they please and control who uses it.
In the UK, however, no specific right to your own image has been created either in any statute or expressly in case law. There are, however, case law examples where other intellectual property rights have been established to aid in the protection of an image.
Many celebrities are paid to use their image to endorse various products, but if a company uses a celebrity image without permission to promote their product, the celebrity may be able to bring a claim for passing off.
To succeed in such a claim, the celebrity would have to show that:
- at the time of the acts complained of they had a significant reputation or goodwill;
- 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 their goods have been endorsed, recommended or approved by the claimant.
In Irvine v Talksport (2002), it was held that unauthorised use of an image which falsely suggests the endorsement of a product amounts to passing off under UK law.
Celebrities can usually register such things as their name and signature as trade marks – David Beckham’s name, for example, is registered as a Community trade mark for goods including perfumes, sunglasses, jewellery, posters and toys. They can also register their image: if a company uses a celebrity’s image without authorisation, this may amount to trade mark infringement. Such trade marks, however, are difficult to enforce: it appears the more famous the celebrity, the more likely that use of their name/likeness will be considered descriptive and so not amount to trade mark use (Elvis Presley Trade Marks (1999)).
Privacy and confidential information
There is a right to privacy under Art 8 of the European Convention on Human rights and this would apply to celebrities, even though famous people must expect more intrusion in their lives arising from legitimate public interest. If photos were taken of a celebrity in a private setting, therefore, a claim for breach of privacy might arise, although this would need to balanced with the defendant’s right to freedom of expression under Art 10 of the Convention.
Following Douglas v Hello! (2005), the law of confidential information can be used to protect commercial aspects of image rights. The claimant, however, would have to show that the information had the required level of confidence – in Douglas, steps had been taken to prohibit publication of wedding photos of Catherine Zeta-Jones and Michael Douglas by anyone apart from the magazine given the exclusive right to do so.
A claim for defamation might arise if the celebrity’s image was used without authorisation to falsely endorse a product if such a use damaged their reputation and caused them serious harm. This could arise, for example, if the image of an avowed vegetarian celebrity – who had their own range of vegetarian products – was falsely used to endorse a meat product.
The Data Protection Act 1998 states that photographs of a person amount to personal data; they thus must be handled according to data protection principles. This means that personal data must be processed fairly and lawfully, a premise which may be breached where a celebrity’s image is used without consent to falsely endorse a product.
The CAP (Committee of Advertising Practice) code provides that advertisers should obtain consent before referring to a celebrity in an advertisement or implying personal approval of the marketed goods.
Marketers must also not unfairly portray or refer to anyone in an adverse or offensive way unless that person has given the marketer written permission to allow it.
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 EU member states such as France and Germany there are statutory image rights.