One of the main features of the new Guernsey Image Rights legislation, which came into force on 3rd December this year, is the fact that personalities both living and deceased, can be entered onto the register. This in itself is something unique and a feature which allows for considerable scope when considering the assets of those whose income is derived from their image.
The Guernsey Image Rights register recognises two entirely new forms of registrable IP right - those of personality rights and together, their underlying image rights. These personality rights are dealt with by reference to one of five main categories, namely sole personality, joint personality, group, legal person and fictional character. Once the personality right has been registered, their underlying image rights can be added. Image rights consists not only of any images themselves, but also other characteristics of the personality such as a voice, mannerisms, gestures, pseudonyms etc.
The personality rights are registered for 10 years, with images being registered for 3 years - all of which are renewable and therefore capable of perpetual registration. This feature makes it very simple to integrate these new IP assets into any succession planning scenario, as the owners of these rights now have both clarity of right and also the ability to consider the assets from a long term perspective.
If we imagine the scenario where a famous musician coming to the end of his career wishes to register his personality and image rights in Guernsey in order to provide for his heirs. The first thing to note is that these assets can be owned by any proprietor anywhere in the world, so can easily fit into an existing portfolio of IP rights. For these purposes, we will assume that a corporate structure has been put in place to hold this IP.
The musician's personality and image rights are registered in this company and then licensed out in accordance with any contracts that may be entered in to. The musician's will should be drafted to take into account the ownership of this structure and the beneficiaries of the will detailed in the normal way. Upon the death of the musician, the shares in the company would simply pass to his specified heirs and the beneficiaries would automatically become the owner of the IP rights and entitled to the benefit of any contracts.
In addition to this, depending on the profile of the personality, there is always the opportunity for new contracts to be entered into using that personality's image. New images can be registered posthumously and again contracts can be entered into, benefitting the new owners of these rights. This gives the personality a unique way in which to deal clearly and neatly with these rights for the first time and adds clarity to the substance and ownership of these rights.
The legislation also provides for the registration of those personalities who have been dead for up to 100 years before the application is made. This enables the estates dealing with deceased personalities' assets a way to not only register these rights for the first time, but also to give the rights a term not previously enjoyed anywhere else in the world.
In the last few months, we have seen a number of high profile cases dealing with the likes of A-list celebrities such as Marilyn Monroe and Albert Einstein, be decided so as to dismiss their statutory image rights on the grounds that they have essentially expired. Both of these cases were in the US and the decisions there are made on a state by state basis, depending on where they are heard (typically where the celebrity has died).
The Guernsey right, on the other hand, does not suffer from any such expiry periods and can therefore provide a very structured way of managing, protecting and commercialising these very important and valuable assets, in a way that will benefit a great number of personalities around the world.
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.