Will Guernsey set a trend for others to follow – or will this new IP right rise and fall in the Channel Islands?
With a mixed response from business, the first image right has now been filed for registration in Guernsey. The States of Guernsey brought new Image Rights legislation into force on this day, 3rd December 2012 . The Image Rights (Bailiwick of Guernsey) Ordinance, 2012 means that for the first time anywhere in the world, individuals and their agents can register and protect their personality.
The Olympics earlier this year stimulated much discussion about the value that sports personalities build in their intangible assets during such games and how some were preparing to protect that value.
The Image Rights (IR) Ordinance establishes a new form of intellectual property, that focuses on two concepts – the "registered personality" (the core right) and "images" that are associated with or registered by that registered personality.
Personality (described in the IR Ordinance as the "personnage") covers:
- natural or legal persons;
- a joint personality;
- a group; or
- a fictional character of a human or non human.
All sorts of personalities, such as David Beckham, One Direction, Torvill and Dean, James Bond, Mickey Mouse, Batman and the Joker qualify. The creator of the fictional character is, generally, the prospective proprietor of the fictional character's personality and its associated image rights. Supposedly, a legal person's personality can be registered, so it appears that J K Rowling for instance could be a registered personality, and then she would get protection for Harry Potter characters - or these characters could be registered personalities in their own right.
The IR Ordinance also caters for both dead people and "extinct" legal persons. If the natural or legal person was "in existence" within the period of 100 years prior to the date of filing of the application for registration of the personality, it will also qualify for registration of its personality.
"Image rights" are defined as "exclusive rights in the images associated with or registered against the registered personality", which if registered may strengthen the case for infringement.
An Image refers to:
- the name of a personnage or any other name by which a personnage is known (e.g. David Beckham or "Becks");
- expressions (verbal or facial);
- any other distinctive characteristic or
- personal attribute of a personnage;
- and/ or photographs, illustrations, pictures, moving images, electronic or other representations of a personnage and of no other person, except to the extent that the other person is not identified or singled out in or in connection with the use of such an image.
The registration of a personality gives the registered proprietor exclusive rights in the images associated with or registered by the registered personality. The registration of a personality lasts for a period of ten years from the date of registration and may be renewed for further periods of ten years. Where a specific image has been registered against the registered personality, the registration of that image lasts for three years and may be renewed for further periods of three years.
Applications to register image rights may be refused if they are considered to be similarly confusing with other images or where there is an earlier right in relation to the personality or image applied for, eg trade mark rights, copyright, design rights etc.
A "Protected Image" can be infringed. To be a Protected Image at the time of infringement, the image has to be "distinctive", have "actual or potential value" and satisfy the registrability requirements of an image (whether or not it is in fact registered). An image is "distinctive" if it is recognised as being associated with the registered personality by a wide or relevant sector of the public in any part of the world, and various factors are provided for determining whether an image is distinctive.
Application for registration may be made by the personnage if they appear in person at the Registry, or by a Guernsey Image Rights agent, for the personality alone or with a specific image or images.
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.