Court Of Appeal Reinforces Position Of Protecting Image Rights In UK

Pop star Rihanna has won her legal battle against high street store Topshop over a T-shirt design which included her image – following a decision handed down today by the Court of Appeal.

The landmark case, which is seen as providing an important ruling on celebrity "image rights", focuses on a T-shirt design that Topshop sold which included an unauthorised photo of Rihanna taken during a video shoot for her video ‘We found love’.
 
Geoffrey Hobbs QC, appearing for Topshop, argued at the hearing last year that the court was dealing with a "decorated T-shirt" and said it was similar to previous merchandising of star images including those of Elvis Presley and Jimi Hendrix.

Today, however, three appeal judges agreed with an earlier High Court ruling that stated selling the item amounted to "passing off” as the public would assume Rihanna had licensed the use of her image to Topshop.

It is thought that the case could cost Topshop millions of pounds.  The case is important because it gives a clear indications of how and when selling a garment with an image of a famous person may, or may not constitute passing off.

Georgie Collins, Intellectual Property and Media partner at Irwin Mitchell said:

Expert Opinion

In the UK, there is no free standing law of 'image rights' that allows a person to control the reproduction of their image, contrasted with the US. Anyone seeking to protect and prevent the unauthorised use of their image, must choose from a variety of rights, including trade marks, copyright, designs or the law of confidence. The Court of Appeal has just reinforced this position.

"This is not the first case of its kind where celebrities have been successful in protecting their image rights. Michael Douglas and Catherine Zeta-Jones were successful against Hello! Magazine in preventing the publication and use of unauthorised photographs taken at their wedding. Eddie Irvine also successfully sued Talksport for passing off over its unauthorised use of his image.

“The case also illustrates how fact dependant these types of cases are. Here, it was held, the mere sale by a trader of a t-shirt bearing an image of a famous person is not, without more, an act of passing off. However in this case, the judges ruled that the sale by Topshop of t-shirts bearing Rihanna's image, without her approval was unlawful.

"Interestingly, Rhianna relied on passing off, but there could be similar cases to this where a rights owner might want to rely on copyright. What might surprise people, is that the copyright in the photograph that depicted Rihanna’s image that was used by Topshop, was owned by a photographer who had licensed Topshop to use it. That was not enough to save Topshop – whatever the position in relation to the copyright in the photograph, other rights came into play.

"Anyone involved in branding and retail must think carefully before using third party images on products, irrespective of whether such images are freely available online or actively publicised by someone famous ”
Georgie Collins - Partner