It may be tempting to use a celebrity’s photograph or signature to endorse your own business, but doing so without considering the celebrity’s “image rights” first may lead to legal problems.
Famous film stars and athletes earn significant sums beyond their day job at the studio or stadium. Their image can be used in a variety of commercial contexts, ranging from endorsem*nts and sponsorships, to merchandising and deals with fashion brands and magazines.
Marketwatch reports that on average, signing a celebrity correlates to a rise in share prices, and a 4% increase in sales. After Chanel signed Nicole Kidman in 2003 to promote its N°5 perfume, global sales of the fragrance increased by 30%.
It may be tempting to use a celebrity’s photograph or signature to endorse your own business, but doing so without considering the celebrity’s “image rights” first may lead to legal problems.
Image rights are an individual’s proprietary right in their personality, and include the right to prevent unauthorised use of their name, physical or style characteristics, signatures, or slogans. Image rights are also known as “personality rights” or “rights of publicity.” This concept comes from the idea that each person should be able to control how his or her “persona” is commercialised. Jurisdictions including the United States, Canada, and much of Europe (Germany and France especially) have well-established rights of publicity.
The position in the United Kingdom is somewhat more complex. Under English law, if a celebrity opposes the use of their image for commercial purposes, they have to choose from various causes of action, such as a claim for infringement of intellectual property rights, breach of confidentiality, advertising standards requirements or data protection. This has developed piecemeal and it would be preferable for legislation to be passed to set out a coherent image or publicity right to make the position clearer for celebrities who want to protect themselves and businesses that may be looking to use a celebrity’s image alike.
There are a number of points to be aware of in respect of the different routes that celebrities can currently take to protect their “image rights” and which should be considered if you are looking at using some form of celebrity endorsem*nt in your business. Some of these are discussed in further detail below.
What if the image of the celebrity is not copyright protected? Even if you lawfully purchased an image of a celebrity from a photographer or website, or if the image is in the public domain (or “free for use”) you must first obtain the permission of the individual concerned. This is because the purchase of the image only addresses the issue of copyright. It does not necessarily protect you from legal action being taken on grounds of trade mark infringement or passing off in respect of how you use the celebrity’s image.
Trade mark protection is considered the most practical way for a celebrity to earn money from the commercial use of their image, and prevent others from making use of it without permission. A trade mark is a mark, word, phrase, or label used to identify a product, service, or brand as being owned by a certain company or person. David and Victoria Beckham have registered trade marks for their names, as have Jay-Z and Beyoncé’s children, Blue Ivy, Sir, and Rumi. If you use a celebrity’s name without consent, you may be liable for trade mark infringement so it is advisable to check this.
Passing off is a type of tort or harm which damages the magnetism or “attractive force” of a celebrity’s reputation. This is particularly relevant when a celebrity is falsely represented as having endorsed a particular product, service or brand. In 2012, clothes retailer Topshop sold a t-shirt with Rihanna’s image on it. The image was a photograph taken by an independent photographer during a music video shoot. While Topshop had a licence to use this photo from the photographer who took it, Topshop did not have a licence from Rihanna herself to use it on the T-shirt. Rhianna successfully sued Topshop on the grounds that using her image without her approval was an act of passing off.
Summary
It is important to note that despite the above, there is no “image right” recognised in English law. It is not necessarily an infringement to use someone else’s image without their consent. Rather, the court will consider the specific image in question, the celebrity’s previous and on-going commercial relationships, and their reputation in general. Additionally, the product may be seen as simply a “carrier”. For example, a poster or coffee mug featuring the name and photo of Benedict Cumberbatch may simply be seen as a Benedict Cumberbatch poster or coffee mug, rather than a poster or coffee mug produced by a source officially licensed or endorsed by Benedict Cumberbatch himself.
In any event, before using an image of a celebrity in your business, it’s recommend that you consult a lawyer to ensure proper due diligence and assess the risks of doing so. This is also good advice when selling products featuring images protected by copyright, even if they do not portray recognisable persons or celebrities. Taking the time to consider image rights may seem complicated, but it should save both time and expense in the long run.
