Rihanna passing off Rihanna's passing off case should lead to more attempts to control exploitation of images

Rihanna passing off

At the outset of discussing the Rihanna passing off case it is important to note that the case of Fenty v. Arcadia [2013] EWHC 2310 (Ch) (the “Rihanna case”) is not a case that is concerned with image rights, but passing off, Mr Justice Birss was at pains to assert this at the outset of his judgment. JBirss, sentiments were that there is no such thing as a free standing general right by a famous person to control the reproduction of their image in the United Kingdom; a sentiment which he repeated in the Betty Boop trade mark & passing off case

Nevertheless, the Rihanna passing off case highlights the difficulties individuals have in the glamorous world of show business over control of the exploitation of their images. Naturally huge stars like Rihanna have the fame and financial clout to protect the financial value of their identity. From JBirss we learn that Rihanna has or has had endorsement deals with Nike, Gillette, Clinique, and L G Mobile. That her merchandising business was managed by Bravado but change to Live Nation in 2012 and that a significant sum was paid for her merchandising rights including clothing. That she uses Roraj Trade LLC and  Combermere Entertainment Properties LLC to conduct her merchandising and endorsement operations. Most ordinary individuals do not have Rihanna’s reputation.

Nevertheless, should ordinary individuals have the free standing right to protect the  commercial value of their images? Thanks to celebrities like Rihanna more individuals will attempt  to exercise their legal rights over the commercial exploitation of their images by whatever remedies are available to them under UK law.

The terms and context of the rights for the exploitation of images in the glamorous world of entertainment including – modelling, acting and celebrities,  are usually fast and loose. Formal contracts are hardly ever used and even when they are individual models, for example, hardly ever have independent legal advice. In a typical scenario for example an advertising agency would book a model with a model agency for a shoot for a gym. Ten years later the model is still the poster boy for the gym but has only been paid for the initial shoot. In most cases the models would not have signed any license agreement for the advertising agency’s continuous use of their images. Welcome to the world of entertainment, celebrities and photographs. For the above reasons alone it is worth examining the Rihanna Case more closely to see if it lends any assistance in this grey area.

The full citation of the Rihanna passing off case is: (1) Robyn Rihanna Fenty (2) Roraj Trade LLC (3) Combermere Entertainment Properties LLC and (1) Arcadia Group Brands Limited (T/A Top shop) (2) Top Shop/Top Man Limited
[2013] EWHC 2310 (Ch)
Top Shop the well known high street retailer started selling a t-shirt with Rihanna’s (Rihanna a global icon of popular culture) image on it. The image on the t-shirt was taken by an independent photographer from whom Top Shop had a license. Neither Top Shop, nor the photographer, had a license or release from Rihanna. However, unsurprisingly, the photographer was not sued; most lawsuits are filed against the business that uses a photograph rather than against the photographer. Rihanna sued Top Shop for copyright infringement.

The case was concerned with passing off. To establish passing off Rihanna had to show three things:
(i) goodwill and reputation amongst relevant members of the public;
(ii) the conduct complained of must be shown to make a misrepresentation; and
(iii) that misrepresentation must cause damage to her goodwill.
At an immediate glance it is clear that Rihanna’s arguments should clear the first hurdle. It is the last hurdle that would always be challenging. JBirss felt it significant that Top Shop makes a considerable effort to emphasise its connection with stylish celebrities. In 2010 Top Shop offered entrants an opportunity for a personal shopping experience with Rihanna, effectively putting Rihanna’s styling services on offer to the public. The competition was a great success and had an impact on the public. JBirss also recognised that Internet based blogging and activity was not simply chatter and gossip.

JBirss concluded that a misrepresentation was made and that a substantial number of purchasers are likely to be deceived into buying the t-shirt under the false belief that it was authorised by Rihanna. He also concluded with subtle but robust justification that sales of the t-shirt will be damaging to Rihanna’s good will. Sales of the t-shirt was damaging to Rihanna’s goodwill because it amounted to lost sales from her merchandising business and represented a loss of control over her reputation in the fashion sphere. This is subtle reasoning since the first thing that most people would think is that damage to goodwill would mean an association with a product of inferior quality. In that particular regard JBirss stated the fact that the t-shirts were of good quality was irrelevant. In my opinion, although the judge was at pains to say that the case had nothing to do with image rights, he  was effectively, albeit unintentionally, indirectly protecting  Rihanna’s right to control  the use of her image.
It is beyond the scope of this article to deal with the law worldwide regarding the exploitation of photographs, or, to apply the law to any particular context if you want to do this you had best seek legal advice from a solicitor. Several countries including France and Germany recognise “image rights” and/or “exploitation rights”.  It seems outdated that there should be no free standing protection of “image rights” in the United Kingdom. Rihanna was only able to protect her rights under passing off in  a very specific set of circumstances. It would be very difficult for lesser known individuals to protect their image from commercial exploitation through passing off in general terms. Perhaps it is time for UK law to formally recognise free standing image rights.



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