ItaButtrose is one of the best known people in Australia.
She's a former Australian of the Year, she's widely
respected and her word carries a great deal of weight.
So when a company providing aged care used her image on its
website without securing her permission, and without paying her
normal fee of $75,000 for endorsing their product, it wasn't
surprising the matter ended up in court.
The Federal Court recently ruled in favour of ItaButtrose. It
heard her lawyers had first demanded $25,000 to settle the case.
The company took its time deciding whether to pay up, and four
months later the lawyers sent a second letter demanding
The Court found the company had breached section 36 of the
Copyright Act 1968 and sections 18 and 19 of Schedule 2 of
the Competition and Consumer Act. The company was ordered
to pay damages and legal costs, and say Buttrose had never endorsed
The case raises the question of whether we can legally own our
own image and what rights we have if someone uses our image to make
money. It's happened several times such as companies taking
images of faces from social media sites such as Facebook to use in
advertisements for their products.
In principle our face can't be copyrighted, nor can our
image. It is quite legal to take a photo of anyone in a public
place such as a celebrity and sell it. The celebrity can't own
Similarly you are welcome to take a picture of the Sydney Opera
House, but if you use it in a commercial venture such as
advertising or company logo you will need permission of the Opera
House managers. You may have to pay for commercial use of the
Similarly, if you use an image of a person in a commercial
venture such as advertising or public promotion the law requires
you to get their permission. You are associating that person with
your commercial venture, you are making money from their image. A
recent advertisement for a trendy Sydney cocktail bar said in the
small print that by entering the bar "you agree to be
photographed and filmed and grant (the international hotel chain)
the right to use, publish and copyright your picture, likeness
and/or name in videos and/or photos taken for use throughout the
world in perpetuity throughout all media".
It's doubtful whether that would stand up legally for
someone with a big public profile like ItaButtrose. What if they
hadn't seen the notice? Even regular folk have the right to
approve the use of their image for commercial purposes.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This case set a new benchmark in Australia for future patent infringement damages claims against generic manufacturers.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).