Controlling your image in the UK
In the aftermath of the London 2012 Olympics, many athletes will find that their image has become a lucrative and precious commodity. We have already seen how the likes of Victoria Pendleton, with her collaborative bike range with Halfords, Usain Bolt endorsing Puma and Jessica Ennis with her numerous product endorsements from sports drinks to clothing, have all exploited their image as a brand.
Taking Jessica Ennis as an example, the 'Ennis' brand has become a commodity and can be commercialised, bought, sold, traded and licensed. By endorsing a product, Ennis, with her high profile and positive publicity, has the potential to increase a consumer's brand awareness, enhance a brand image and, as a result, increase consumer sales.
We have seen how Ennis has exploited her image through a clothing line which makes use of her signature, a sketch of her face and marketing material showing Ennis wearing the products. However, the UK provides piecemeal and, some would say, incomplete protection for image rights. This piece looks at the tools available to Jessica Ennis and other such public figures to control the use of their image.
Although the UK does not recognise an image right per se, we still see image right contracts. The rights licensed in these contracts are essentially a combination of rights, including trade marks, privacy rights, and passing off rights (preventing false endorsement claims).
In any image right licence, one of the key factors is to ensure that the aspects of the individual’s image and the rights protecting that image are clearly defined. In a case involving Wayne Rooney, a Manchester United footballer, the Courts have defined an image right as:
"Image Rights means the right for any commercial or promotional purpose to use the Player's name, nickname, slogan and signatures developed from time to time, image, likeness, voice, logos, get-ups, initials, team or squad number (as may be allocated to the Player from time to time), reputation, video or film portrayal, biographical information, graphical representation, electronic, animated or computer-generated representation and/or any other representation and/or right of association and/or any other right or quasi-right anywhere in the World of the Player in relation to his name, reputation, image, promotional services, and/or his performances together with the right to apply for registration of any such rights."
Perhaps the most useful legal tool for a celebrity such as Ennis is the ability to pursue a passing off action where her name, image or likeliness is used in a way which falsely suggested that she endorsed another's goods and/or services. The key case here involved Eddie Irvine, a Formula One racing driver, who brought an action in passing off against a UK radio station, Talksport. Talksport had doctored a photograph to show Irvine holding a "Talksport" branded radio. This photograph was then used on a brochure advertising the radio station. Irvine claimed that the doctored photograph falsely suggested that he endorsed the Talksport radio station and that he had suffered loss and damage as a result. The Court of Appeal awarded Irvine damages of £25,000, which was considered a reasonable royalty fee for endorsing Talksport. This case continues to be a very helpful precedent for sports people (and other celebrities) like Ennis.
For example, if an athlete discovered a company using her image on a range of perfumes, in order to pursue an action in passing off, she would need to demonstrate:
- At the time of the company using her image on a range of perfumes, she had a significant reputation or goodwill. This would be easy for an athlete like Ennis. She would be able to show reputation and goodwill through extensive media coverage and existing product endorsement contracts and other licensing deals; and
- The company's actions would give rise to a false message which would suggest, on a balance of probabilities, to a significant section of the company's market that the perfume range had been endorsed or approved by the athlete. It is highly likely that if a consumer saw Ennis' image either on the product or in advertising and marketing material, they would believe it had been endorsed or approved by her.
Another avenue would be to make a complaint to the Advertising Standards Authority ('ASA') against advertisers using her image without her consent. However, complaints can take some time to investigate and the complainant does not receive any monetary compensation. What it could achieve is the removal of the advertisement from circulation and publication of an adverse ruling against the advertiser. The ASA codes specify the following:
- Television: living persons must not be featured, caricatured or referred to in advertisements without their permission.
- Radio: adverts that feature, allude or refer to a living person must not interfere with that person's private or family life, in addition, the code recommends that permission is sought;
- Non-broadcast advertising, promotion and direct marketing (including websites and social media sites): marketers are urged to seek permission before referring to a person with a public profile.
While Jessica Ennis and the rest of Team GB may be receiving a great deal of positive press attention, like most celebrities, there may come a point where they will want to control the level of press intrusion into their lives. They may be able to rely on the law of privacy, which is essentially the right to respect for private and family life, home and correspondence, to prevent others using their image without consent. This is a complicated area. Recently, the courts have made it clear that those who court publicity and who speak to the media about aspects of their private lives, will find it hard to prevent publication of revelations and photographs supporting those stories. Whether an individual is found to have a reasonable expectation of privacy in relation to a press story will very much depend on how they have conducted themselves in front of the media to date. Of late, courts are much more willing to find that it is in the interests of the public to reveal quite personal matters about public figures. For example, the Court found recently that there was a public interest in publishing details of Steve McClaren’s alleged affair, particularly given that he had been photographed with his wife both when accepting and resigning from his role as England football manager and having spoken about a previous affair with the press.
As image rights continue to develop and evolve around the world, for example, Guernsey's new legislation on image rights, the UK may be forced to formally recognise that sports people and celebrities alike have a right to publicity, which inevitably would include a right to prevent others from using their image without consent and adequate remedies to compensate.
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"In any image right licence, one of the key factors is to ensure that the aspects of the individual’s image and the rights protecting that image are clearly defined."