As a society, we are obsessed with celebrity. We are constantly bombarded with their pictures and the latest goings on in their lives: what they’re doing and who they’re seeing. Perhaps more than anything, we care about what they’re wearing. Many celebrities have become fashion icons, driving the latest trends. And fashion retailers know this.
Celebrities are thus immensely powerful marketing tools for these clothing retailers.
Celebrities are thus immensely powerful marketing tools for these clothing retailers. Associating your brand with the hottest celebrities can pay dividends in both sales and bolstered reputation. Many celebrities take advantage of their commercial value. Deals are abound between footballers like Wayne Rooney and Lionel Messi and companies like Nike and Adidas who want their new boots to be approved of, and endorsed by, top athletes. With ever-more competitive markets, it’s unsurprising that companies will do anything to imply a link between influential celebrities and their products in the hope of increasing sales.
This can cause disputes between those companies and celebrities who don’t think their image has been used entirely fairly. Legally there is very little the celebrity can do if they believe their image has been misused, as there is no ‘image right’ (or right to exploit one’s public image) in English law. Celebrities are usually forced to depend on the tort of passing off to protect their image.
Irvine v Talksport
Undoubtedly the most famous case of a celebrity seeking to prevent the use of their image without their permission is Irvine v Talksport  2 All ER 414, where the magazine Talksport sought to use a doctored image of the then prominent Formula 1 racing driver Eddie Irvine to promote their new F1 services. Irvine claimed he had not authorised the use of this image and claimed it was a false endorsement. Irvine won after proving the three key elements of passing off: that he had a reputation and goodwill in the UK, that there had been a misrepresentation by Talksport, and that this had damaged Irvine’s goodwill (or ability to control his goodwill).
It was the late Mr. Justice Laddie in the Irvine case who affirmed that a celebrity’s right to control his/her endorsements could be protected using passing off. He provided:
[it is] for the owner of goodwill to decide who can use it alongside him …that ability is compromised if another can use goodwill without his permission.
Thus a celebrity may prevent people taking advantage of their goodwill without their permission using passing off.
This does not mean celebrities have a legal right to exploit their image, however. The courts have been notoriously apprehensive when on the cusp of creating a right, with some suggesting it would be a negative development; legal commentator Gary Scanlan has argued strongly against the UK introducing an ‘image right’, citing policy reasons. Lord Walker in Douglas v Hello  UKHL 21 summed up the position thus: ‘under English law it is not possible for a celebrity to claim a monopoly in his or her image’. How does the Rihanna decision fit into the current case law? It is first helpful to examine the case in full. (The case is reported as Fenty v Arcadia  EWHC 2310 (Ch), Fenty being the popstar’s real surname).
Fenty v Arcadia: a new perspective?
The action arose from Topshop offering for sale t-shirts bearing a photo of Rihanna. Topshop obtained permission from the photographer, who holds copyright in the image, but not from Rihanna herself. Rihanna therefore claimed Topshop were wrongfully exploiting her image without her permission and brought an action in passing off to protect her image from the alleged misappropriation. Birss J, in finding for Rihanna, ruled that passing off had occurred in this case.
The action arose from Topshop offering for sale t-shirts bearing a photo of Rihanna.
Whilst Birss J in Fenty and Laddie J in Irvine before him are eager to point out that they are not giving life to an express right to exploit one’s image, these cases do signify a sort of acceptance. In Irvine, Laddie J asserted that it is:
for the owner of goodwill to decide who can use it alongside him…that ability is compromised if another can use goodwill without his permission.
Birss J also provides ‘[the misrepresentation] represents a loss of control over her [Rihanna’s] reputation in the fashion sphere’. Upon closer inspection, English law now seems to recognise that the tort of passing off can be used to protect one’s public image, provided circumstances are correct.
In both Irvine and Fenty, substantial goodwill in the UK and potential damage were crucial to a finding of passing off. The fact that Rihanna already has her own clothing line with Topshop rival River Island and enjoys substantial goodwill in this country were major contributors to the ruling. As in Irvine, ‘loss of control’ over one’s image was crucial to a finding of passing off. The photo used was similar to official ones used for album covers, implying that the endorsement was official; this was also a factor in the judgment.
Deception by means of misrepresentation appears to have played a key role too. Birss J provides there can be no action in passing off merely for selling a t-shirt with an image of a celebrity on. It is whether there has been ‘a false belief engendered in the mind of the potential purchaser’ and additionally whether this belief has ‘play[ed] a part in their decision to buy the product’.
So where are we now?
This case certainly does not create an image right in English law, and the combined comments of Laddie and Birss JJ are unequivocal in this regard. However, it is undeniable in light of Irvine and Fenty that passing off can be used to protect goodwill in celebrities’ images where there is significant goodwill and calculated deception on the part of the defendant. Existing endorsement deals with rival companies that may be harmed only serve to strengthen the claim. Whether we will see a right to commercially exploit one’s image in future years is still open for debate, although one thing is certain: companies must now exercise caution when using celebrity images to sell their products, unless permission is first obtained, and it is likely only a matter of time before a case of this nature again comes before the courts.
Bartholomew has recently graduated from Sheffield Hallam University with first class honours, and is due to commence the LPC at the University of Law, York in September 2013.