Celebrity rights across the pond

The proceedings allege ElevenParis has been ‘brazenly’ selling various pieces of clothing and merchandise, including shirts and mobile phone cases, which feature ?the celebrities likenesses, messages, and song lyrics without permission. All the celebrities in question have their own clothing lines or agreements with clothing and/or merchandise companies. Interestingly, Beyoncé previously had a commercial relationship with the retailer and is claiming breach of the terms of that contract.

With proceedings only recently issued, it is unclear how quickly the New York courts will seek to deal with the complaint and the level of relief they are willing to provide. In the US, ?the right of publicity is a state law-based right, as opposed to federal. Many states, however, will readily protect a celebrity’s likeness during their lifetime, with some even willing to maintain a level of protection after their death.  

The UK is far more conservative in its approach ?to ‘image rights’ and there is ?no specific image or character ?right which allows a celebrity to control the use of their name or image. As such, a practitioner needs to think creatively and call upon various causes of action, such as breach of confidence, privacy, copyright and trade mark infringement, and passing off/false endorsement, when seeking ?to protect a client’s image or likeness. 

The Court of Appeal’s decision to uphold Rihanna’s allegations that Topshop’s use of her image on a t-shirt sold without permission amounted to passing off has reignited the debate surrounding publicity rights. Although initially held up as introducing some form of image right by celebrities, given the unique facts of the case it merely clarified rather than developed the court’s view in such matters, and, if anything, the threshold ?to succeed with a claim for unauthorised use of an image ?in the UK is now higher. 

Our legal system, despite this investment in celebrity culture, does not provide the level of protection from unauthorised use of celebrity images that is available in other jurisdictions.  While foreign claimants may forum shop in England to obtain the benefit of our libel laws, they certainly would not come here for our image right protection. ?In these circumstances, a number of questions arise, including whether the UK should adopt a more US-based approach to the issue of image rights. 

While there continue to be calls for parliament to introduce an ‘image right’ to balance all relevant concerns and provide clarity, to both celebrities and those operating within the clothing/merchandising industries, it seems likely the current status quo will remain unchanged, with the UK a long way off from upholding similar celebrity rights to those across the pond.

Philip Herbert, pictured, is a partner and Hayley Devlin an associate in the entertainment and media department of Hamlins @HamlinsLLP www.hamlins.co.uk