The Rihanna Top Shop Crop Top Claim: A cautionary tale of false endorsement, but are there image rights in the UK?

by Lisa D. Rhooms

To begin with the end, a celebrity’s face sells. The more famous a celebrity, the more commercially valuable their image, and the more money to be made by placing said celebrity’s image on merchandise such as children’s lunch boxes, back packs and, of course clothing. This is the essence of the case[1] brought by Robyn Rihanna Fenty, better known as just Rihanna, against the Arcadia Group, trading as Top Shop, a chain of clothing and accessories stores. The gist of the claim, was that Arcadia used her image on t-shirts, which she did not authorise.

The general view in the UK is there is no “image right.” This does not mean to say that where a person’s image or likeness is used without their consent, there is no remedy. In fact there are a host of remedies which might assist, even though not being image rights per se. These remedies include defamation proceedings, a suit for breach of contract or confidence, and passing off.

In the case of Irving v Talksport Ltd[2], the court set out the test for a claim of passing off by false endorsement as being that the claimant had to show he had substantial goodwill in the market of endorsements, and that the defendant’s activities caused a significant portion of the relevant market to falsely believe that the claimant endorsed the defendant’s goods or services.[3] In the case concerning Rihanna and Top Shop, Rihanna instituted passing off proceedings for the use of a photograph taken of her for her “Talk That Talk” album, on t-shirts sold by Top Shop. Rihanna’s claim was, as in Talksport, that a substantial portion of the relevant market would believe that she endorsed Top Shop’s goods (not to be confused with her past dealings with the Arcadia Group, with products she in fact endorsed). Top Shop’s argument was of course that Rihanna was claiming an image right, which did not exist under English Law. The court however held in favour of Rihanna, finding there was passing off, as the relevant market had been falsely led to believe that “Rihanna had approved or authorised, and that this had caused her damage.”[4] Kitchin LJ, in his judgement was careful to reiterate nevertheless, that still “there is in English law no “image right” or “character right” which allows a celebrity to control the use of his or her name or image.”[5] Kitchin LJ, went further to quote Lord Walker in Douglas & ors v Hello! Ltd & ors (no 3)[6], which emphasised that no image right exists in the UK.

“Although the position is different in other jurisdictions, under English law it is not possible for a celebrity to claim a monopoly in his or her image, as if it were a trademark or brand. Nor can anyone (whether celebrity or nonentity) complain simply of being photographed.…”[7]

Therefore, while this case may look suspiciously like Rihanna was able to use other means to procure an image right, which does not exist in the UK, are there really still today no image rights in the UK? And is it truly safe to even say that at the time of the Rihanna case there were no image rights under English law?

Some academics and practitioners argue that there are image rights in the UK, and there have been since, at the very least 2011.[8] In October 2011, the Court of Justice of the European Union gave judgment in Martinez v MGN Ltd[9], Olivier Martinez brought an action, in France, against the UK Mirror Group, for the use of his image on their website attached to an article about his relationship with pop singer, Kylie Minogue.  In the judgement of the court, it seems the internet opens new concerns for image rights and their existence in the UK. The court states that where a person contends an infringement of their image rights “the victim may always bring an action before the courts of each Member State in the territory of which the online content is or has been accessible”[10] and further that “the person whose rights have been infringed may also bring an action, in respect of all of the damage caused, before the courts of the Member State in which the publisher of the online content is established.”[11] This decision makes it clear then that a person claiming that his or her image rights have been infringed, could bring an action before a UK court, where the UK is somehow connected to the action, and this is even more so possible where the infringer is established in the UK. Does this therefore import wholesale image rights into the UK or is this just for online content? It seems that at least with respect to online content, a court in the UK may be asked to adjudicate on image rights, whether they are believed to exist in the truest sense or not, and this may be ground for saying there are actually image rights in the UK for online publications. As to whether this clarification by the court on online publications can be extended to all image rights matters, this is a more difficult question to answer, and may very well be resolved in favour of the general argument that the UK is just not there, perhaps as yet, in allowing a person to have full autonomy over his or her image. However, before you next go plastering your favourite celebrity’s image on a shirt or article without their consent, because their face sells, remember that even if this mysterious concept of image rights in the UK does not catch you, something else will.

 

Lisa Diana Rhooms

Assistant Editor, QMJIP

 

[1] Fenty v Arcadia Group Ltd [2015] EWCA Civ 38

[2] [2001] 1 WLR 2355

[3] ibid [46] (Laddie J.)

[4] Fenty (n. 1) [5] (Kitchin LJ)

[5] ibid [29]

[6] [2007] UKHL 21, [2008] 1 AC 1

[7] ibid [293] (Lord Walker)

[8] See Robin Callendar Smith, ‘Celebrity privacy and the development of the judicial concept of proportionality: How English law has balanced the rights to protection and interference.’ (DPhil thesis, Queen Mary University of London 2014) 156-160 for discussion of Martinez decision, on importing image rights into the UK, available at <https://qmro.qmul.ac.uk/xmlui/bitstream/handle/123456789/7934/Callender%20Smith,%20Robin%20101114.pdf?sequence=1&gt; 1st accessed February 16, 2016 . See also, Robin Callender Smith  ‘Mirror, Mirror on the Wall….Are Those Image Rights I See Before Me?’ (2012) Vol. 2 Queen Mary Journal of Intellectual Property, 195..

[9] C-161/10.

[10] ibid (n. 8).

[11] ibid (n.8).