The money that sport personalities receive as remuneration for the usage of their image rights have tremendously risen during the last years. Image rights are an asset of the sports personality, with huge commercial value and potential. Therefore, it is imminent today, more than ever before, that sports personalities protect their image from unlicensed use by others.
Whilst in countries like the United States, France or Germany, these personality rights are at some extent recognized and protected, there are still many countries in the world, such as the UK and Ireland, where there are no specific legal tools which define image rights or address the harm caused by the unlawful use of a person’s image.
According to USA law, personality rights are defined as rights available to a well-known personality or celebrity to protect them from the unauthorized use of their name, image, signature or persona, without permission or compensation. Personality rights are classified in two types: the right of publicity and the right of privacy. The right of publicity is defined as the right to protect one’s image and likeness from being commercially exploited without the prior permission of the personality or contractual compensation, which is similar to the use of trademark. On the other hand, the right of privacy states that no one has the right to represent someone else’s image publicly without his permission.
Judge Justice Birrs in a case between the pop star Rihanna and clothing retailer Topshop in the United Kingdom High Court (Robyn Rihanna Fenty and Others -v- Arcadia Group Brands Limited and Others [2015] EWCA Civ 3), said that ‘’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’’.
Considering the above and by studying similar cases, not only in the UK, but worldwide, it is clear that the traditional tools of copyrights and trademarks are unable to deal with image rights issues and do not offer the required protection to celebrities, in relation to the unlicensed use of their Image. For a claim to succeed in court the celebrity must prove that:
- At the time of the event he or she had a significant reputation and/or goodwill
- The actions of the defendant gave rise to a false message which would be understood by a not insignificant section of the general public that their goods/products/services, have been endorsed, recommended and approved by the celebrity.
One of the countries which have adopted legislation regulating image rights is Guernsey. During 2012, the English Channel Island of Guernsey, established the International Image Rights registry. Through this registry, it is now possible to register the image rights of a celebrity, including those of sport personalities, as a kind of trademark and thereby, gain some international legal protection for them. According to Guernsey Law, the core right is the registered personality. Personality refers to the personality of the following types of person or rights:
- Natural or legal persons
- A joint personality
- A group such as a sports team or pop group
- A fictional character
A registered personality and their image rights are the personal property of the proprietor. Image rights may be sold, licensed to others and may also be assigned. Registration means that a right exists and protection commences on the date the application is made.
The main benefits and key features of registered Image Rights are:
- They provide legal certainty as to the scope of protection for the celebrity’s image by statutory clarification of the extent of the rights and the public interest exceptions to the rights
- They present an opportunity to clearly set out to the world by way of an online publicly accessible register the bundle of Image rights which the registrant considers as his/her own and which he/she intends to protect (to which reference can also be made in licensing/assignment contracts)
- Instead of reliance on contractually defined image rights, the Guernsey register image right will provide a proprietary right, which is capable of assignment in the same way as any other intellectual property rights
It should be noted that there are many circumstances in which an application for the registration of image rights will be refused, including where the images are of an indecent nature, deceive the public or are made in bad faith.
For more information on the protection of an athlete’s image rights please get in touch with us via e-mail at [email protected].
