Rihanna's successful legal action against Topshop in the High Court over the use of her image on t-shirts shows how using images of celebrities without permission can be a costly and risky business. Rihanna's successful legal action against Topshop in the High Court over the use of her image on t-shirts shows how using images of celebrities without permission can be a costly and risky business.
Topshop had sold t-shirts bearing an image of Rihanna taken from her most recent album without permission. While Topshop claimed it had the photographer's consent to use the image, it had not obtained Rihanna's consent. It was found to constitute the illegal act of "passing-off". Passing-off is used to prevent one person or business from using someone else's goodwill and reputation for its own benefit. As the judge in this case pointed out, passing-off is not something which automatically occurs whenever an image of a famous person appears on merchandising without permission. There has to be a misleading association with the goodwill such as producing products which might be assumed to be official merchandise and which causes, or is likely to cause damage.
There were various factors in this case which did indicate passing-off. Rihanna is a prominent celebrity whose clothing choices and fashions are the subject of close scrutiny. She has commercial interests related to clothing and fashion. In fact, she had a previous business relationship with Topshop. The images used for the t-shirts were closely associated with her most recent album and music video. All of this persuaded the judge that Topshop's activity was unlawful. This is the latest high-profile case which adds to the body of "image rights" law in the UK. Although there is no stand-alone legal concept of an enforceable "image right", celebrities have successfully protected the use of their image through assertion of individual privacy rights and commercial interests. Michael Douglas, Catherine Zeta-Jones, Naomi Campbell and former Formula One driver Eddie Irvine are notable litigants in recent years.
Parliament has considered developing legislation to protect privacy and image rights, but recent political and legislative activity in this field has focused primarily on the aftermath of the Leveson report and it seems unlikely any statutory legislation will be forthcoming in the near future. In the meantime, therefore, this case serves as a timely reminder of the risks and costs which can be incurred by businesses which seek to associate themselves, even indirectly, with the rich and famous. Most sports, music and movie stars now have extensive commercial activities and endorsement arrangements which are set up and managed by agents and representatives.
Coverage of breakthrough sporting success, such as Andy Murray's recent Wimbledon win, regularly includes speculation over the winner's future earning potential through the higher-value endorsement opportunities and 'ambassador' contracts that come with success. The more developed these are, the easier it will be for that individual to establish the type of misrepresentation and detriment which would support a successful legal claim if the image is used without permission. Policing unauthorised image use is an important part of preserving the value of the image itself. It will probably not be too long before we see the rich and famous heading into court again to protect the value of their image. It may not be too long before we find out who is the next celebrity to head to court over it.
Loretta Maxfield is a specialist Intellectual Property, Technology and Media Solicitor. If you would like further information on any of the issues raised in this article, please contact Loretta on 01382 229111 or email lmaxfield@thorntons-law.co.uk or anyone in the Intellectual Property, Media and Technology team.
