Check local “Image Rights” before launching an advertising campaign
by Katie Oliver | Feb 19, 2015
The recent Court of Appeal decision in the high profile case between Rihanna, the celebrity singer and actress, and Arcadia, who sold a T-shirt bearing her image, confirmed that, under English law, there is no “image right” or “character right” which allows a celebrity to control the use of his or her name or image. Therefore, if a celebrity wants to control the use of his or her image, another cause of action must be relied upon, such as breach of contract, breach of confidence,
infringement of
copyright or, passing off.
The Court of Appeal held that, in the circumstances, since Rihanna had had previous association with Topshop and because the image used was similar to other images that she had used in promotional merchandising, the law of passing off applied since her fans might have believed her to have a connection or association with Topshop.
The Court of Appeal’s failure to recognise image rights can be contrasted with other countries, such as Italy. The Court of First Instance of Milan recently opined upon a case involving the unauthorised use in an advertising campaign of evocative elements of Audrey Hepburn’s image by the defendant, Caleffi.
Caleffi’s campaign “The Dream Diamond”, was published in the Italian weekly magazine IO Donna and on their own website. It included an evocative, photographic scene, involving an actress, which according to Audrey Hepburn’s estate recalled her sophisticated image and the well-known opening sequence from the film “Breakfast at Tiffany”, in which Audrey Hepburn looks through the windows of Tiffany’s in New York. The Italian Court concluded that Audrey Hepburn’s image rights had been infringed because the defendant’s “evocative” advertisement, set out to bring the acclaimed actresses’ likeness to the customers mind. The fact that an actress, rather than an image of Audrey Hepburn herself was used did not allow Caleffi off the hook.
This divergence of opinion involving “image rights” between the English and Italian courts is marked and illustrates how judicial opinion and interpretation can differ across international boundaries, albeit still within the EU. Caution should be exercised and local Attorney advice before embarking upon advertising campaigns to ensure that local laws are not contravened.
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Katie is a vastly experienced UK and European Trade Mark Attorney, having qualified in 2002. She is also a Trade Marks Director in Albright IP.
Katie prepares, files and prosecutes Trade Mark applications nationally and globally on a daily basis, and provides proactive commercial advice to business owners and their marketing teams.
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