May 2007
Douglas v Hello: All Glitz and Glamour or Landmark Case
The high profile decision by the House of Lords in Douglas v Hello has clarified issues surrounding celebrity image rights. The decision came after celebrity couple, Michael Douglas and Katherine Zeta-Jones successfully sued Hello back in 2001 after the glossy magazine published photographs of their wedding taken by an undercover paparazzi. (See Briffa’s article from the time at http://www.briffa.com/news/art81hello.htm). The couple had attempted to control all photography at the wedding by preventing guests from taking pictures and contracting Hello’s main competitor OK! to photograph the wedding. However using spoiling tactics typical of the industry Hello swooped in when paparazzi photographer Rupert Thorpe sold his photographs to the magazine. The couple successfully sued for breach of confidentiality however the Court of Appeal rejected OK’s claim that they too were entitled to damages for the breach on the basis that the right only applied to the personal rights of the Douglases. The Court stated that the photographs “may have invaded a residual right of privacy retained by the Douglases but did not infringe any right of OK! “. In doing so the Court effectively rejected the idea that the Douglases could auction off photographs of themselves to the highest bidder in a form of 'character merchandising'. OK! then appealed to the House of Lords.
In the judgement the Law Lords grappled with a “distaste for the modern celebrity world” on one hand while condemning the spoiling tactics used by celebrity magazines on the other. In the end the decision can be best summed by Lord Hoffman’s comment that “provided that one keeps one’s eye firmly on the money and why it was paid, the case is, as Lindsay J held, quite straightforward.” In doing so Lord Hoffman and the other majority Law Lords did not create a new form of intellectual property rights based on “image rights” but merely enforced the contract as agreed between OK! and the Douglases, for which the former had paid the considerable sum of £1 million pounds for. In fact Hello had attempted to bid for the contract but were beaten to it by their rivals. OK!’s claim was to protect short term commercially confidential information which the contract contained. The information had a commercial value and the Douglases had exercised a sufficient degree of control over it. Hello’s actionshad caused a tangible economic loss to OK! and undermined the core objective of the contract. On this basis the majority of the House of Lords sided with OK!.
Briffa’s Opinion
It is difficult to know the
exact reason why this House of Lord’s
judgement in the Douglas v Hello has received so much publicity.
Is it the fact that this celebrity couple have brought glitz and
glamour to the grey corridors of the House of Lords or is it the
slightly exaggerated fears that English law is starting to recognise
celebrity image rights? Despite the 3/2 split the House of Lords
were extremely careful to avoid going down the privacy law route
and related image rights, and instead focused on the conventional
contractual issues the case raised.
Unfortunately this is not a landmark intellectual property law decision
but is a valuable insight into contract law. Our society attaches
an economic value to celebrities and their image, and this case shows
that celebrities can exploit this fact if they manage the process
correctly. This decision has also set boundaries for how far newspapers
and magazines can go to get a scoop.
If English courts are ever going to recognise the intellectual property
rights in “celebrity” then this would have been as good
an opportunity as any. However all 5 Law Lords made it very clear
that they were not about to create any other unorthodox form of intellectual
property.