Rihanna’s image is protected under the ‘umbrella’ of passing off
The Court of Appeal dismissed Topshop’s appeal, confirming that its sale of the t-shirt bearing Rihanna’s image amounted to passing off.
Topshop started selling a t-shirt in 2012 which had on the front an image of a photograph taken of Rihanna by an independent photographer. The photograph had been taken during the video shoot for a single on Rihanna’s ‘Talk That Talk’ album, and showed the artist wearing the same clothing and headscarf as she appeared on that album cover. The video had received significant press attention in the UK due to an objection by the owner of the land on which the video was filmed about the risqué clothing worn by Rihanna. Although Topshop had obtained a licence from the photographer, it did not obtain a licence from Rihanna, who brought a claim for passing off.
The High Court upheld the well-established position under English law that there is no such thing as an individual’s right to protect his or her image from being used to endorse a product or from being used on a product’s packaging. Although such an “image or personality right” may be recognised elsewhere in the world, including in the USA, it is not currently recognised in the UK. However, the Court found that Rihanna had successfully proved the key elements of passing off (goodwill, misrepresentation and damage) so that she was entitled to compensation from Topshop’s unauthorised sale of the t-shirts bearing her image.
The Court of Appeal’s decision
The Court of Appeal held that the High Court Judge was correct to reach the conclusion that he did based on the evidence before him. The Court of Appeal reiterated that there is in English law no “image right” or “character right” which allows a celebrity to control the use of his or her image.
Before this case, it was generally understood that merely putting a celebrity’s image on merchandise without their permission did not constitute an infringement of their rights. However, while this general principle still applies, it is subject to exceptions in certain circumstances, namely where the use of the image amounts to a misrepresentation that the goods have been endorsed by the celebrity in question, making customers more likely to purchase the item on which they appear.
However, these exceptions are likely to be narrowly construed. Underhill and Richards LJJ, while agreeing with Kitchin LJ, regarded this case as “close to the borderline”. They indicated that the outcome was highly dependent on the particular facts, in particular both Rihanna’s past public association with Topshop and the particular features of the image itself.
Accordingly, whilst the decision reaffirms the position that there are no image rights per se under English law, it would appear that protection under the law of passing off will most likely be afforded to celebrities who have branched out from their original field, have their own merchandising lines and have some previous association with the defendant.