With image rights now pivotal to commercial life and the cult of celebrity, Intellectual Property legislation has been urged to offer legal redress to those interested parties as a means of reducing the strain placed on existing legal frameworks. To address these uncertainties, Guernsey legislators have drafted a new and exciting piece of legislation designed to commercialise the age of the image.
This legislation comes at a time when discussions surrounding image rights are topical and very much in the public domain with celebrities seeking super-injunctions and sportsmen and entertainers becoming iconic stars overnight. No other event better portrays the need to protect these issues than the recent Olympic Games, which have allowed sports stars such as Usain Bolt and Mo Farrah to develop their own distinct brands, worthy of proprietary rights and consequently, the need to protect the public from deception and allow for efficient management thereof.
Current Intellectual Property legislation has been found wanting when protecting and enforcing these rights and although copyright and design rights offer some support, trademarks remain the most potent means of protecting an individual’s personality. That said, the focus of trademark protection resides in a word, logo, sign or image in relation to specified goods or services of interest or of intended interest.
Although a trademark registration will protect an image when used in relation to the identical goods or services, as well as those deemed confusingly similar, it becomes more difficult and onerous when seeking to protect against use of an “infringing” trademark on different goods and services, where there does not exist a likelihood of confusion. In this instance, the boundaries become somewhat blurred.
These restrictions have been qualified by the court in Ate My Heart Inc v Mind Candy Ltd. In this case, Lady Gaga sought injunctive relief to prevent the defendant from using an animation coined “Lady GooGoo” in relation to music production and animated gaming. In sum, Lady Gaga was able to prevent use of the Mark in respect of music production on the grounds of trademark infringement but options were less forthcoming when the image was used in relation to animated gaming, where a likelihood of confusion did not exist.
With the introduction of Guernsey’s new legislation, this position is about to change and image rights will soon become valuable assets that can be traded, assigned and owned in their own right. Once implemented, interested parties are expected to flock to the shores of Guernsey to place their personality rights on the eagerly awaited Image Rights Register, with some commentators also suggesting that Intellectual Property holding companies will be set up on the island in order to channel income and obtain taxable benefits. Once in force on 3 December 2012, it is hoped that much needed clarity is imparted to put image rights ‘centre stage’ going forward.
Unlike existing frameworks, the subject matter of the image right will not be exhaustive and will extend to all types of distinctive insignia deemed compatible with modern media and mass markets. Those interested parties will be able to register their signatures, voices and movements, as well as any other form of image. Sports stars and celebrities will be able to register broad rights including signatory poses, photographs or character depictions, without having to be content specific. Interestingly, the legislation will protect both living and deceased natural persons and can even extend to fictional characters.
If you wish to find out any further information about Guernsey image rights and the forthcoming legislation, please contact the team at Albright IP and we will be able to use our expertise to point you in the right direction.