Passing off and image rights

“There is in English Law no ‘image right’ or ‘character right’ which allows a celebrity to control the use of his or her name or image”.

So how do individuals use English law to protect their own image?

Although there is no recognised ‘image right’ law in England, the tort law of passing off has been used more and more frequently in recent years with cases concerning one’s own image.

The action of passing off is used whereby the consumer of a product is likely to be confused or misled by the product on sale or where the product in question has been ‘passed off’ as being endorsed by an individual. With the continuous and arguably growing use of celebrities with product endorsement, it is inevitable that certain individuals may use a celebrities face to monopolise off their high profile status without prior consent.

Plausibly, the first case whereby a celebrity succeeded in the action of passing off with relation to their own image was seen in Irvine v Talksport where famous race driver Irvine sued Talksport for using promotional merchandise bearing Mr.Irvines image without his authorization. The case gave the indication that the courts are willing to recognize the potential financial value that can be attached to a celebrities image.

The view in Irvine was echoed in a similar case that soon followed this judgement is the well-known case of Fenty v Arcadia Groups. The case involved the unauthorized sale of t shirts with Rihanna’s face printed on them.

Rihanna applied the principles laid out in Irvine. In this case, Judge Birss J pointed out that the English law does not recognize the concept of image rights however still awarded the celebrity with the action of passing off on the basis of false endorsement.

The judgements from both Irvine and Rihanna cases imply that although reluctant, the English Courts are reflecting more recognition and providing to their best extent, comprehensive protection for a celebrities’ image rights. But this leaves many to question as to how the ‘non famous’ members of society could use passing off to protect their image? The question unfortunately, remains unanswered.

Therefore, although the closest protection for one’s own image lies in the action of passing off, the prospects of success could prove to be very limited.

Other legislative systems across the globe however provide for these protections specifically. In 2012, Guernsey introduced their own ‘Image Rights Register’ whereby these rights are recognised as a form of intellectual property.

In neighboring country France, the adopted approach known as ‘Driot d’image’ explicitly provides rights for image protection – high profiled or not.

As such when considering the UK, it is wholly unsatisfactory that an individual can maliciously use someone’s image to damage their reputation or wrongly influence the media yet have no dedicated rights in the law to prevent such exploitation.

Unsurprisingly, the issue of image rights is being called upon on a more frequent basis and we should hopefully see some consideration for its legislation in the near future.

If you have any questions relating to this article, contact Lawdit today where we would be happy to assist you.


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