John Langlois, Chairman of Image Rights (Guernsey) Limited, says Guernsey has published the first international 'rules of the game' when it comes to image rights.
Image Rights are back in the news in a big way – hardly surprising as Guernsey has scored a spectacular goal by being the first place in the world to have a public image rights register. This is a real game-changer globally. It's as if Guernsey has published the first international "rules of the game" for the protection of your image. Players, celebrities and others who want their image protected now have the newest and best option available.
Image rights have been around for a long time but they've always been a very local affair. The UK has piecemeal protection for players wanting to protect their image as do other countries. Continental European countries provide broader protection in some ways but each in a somewhat limited manner and each constrained by their common law or civil law backgrounds. Guernsey has brought the two systems of law together to create a global standard that can be legally-recognised under either legal code. Even new terminology, like "personnage" (personality), has been incorporated to link the two systems. The evolution of image rights over the past 20 years is somewhat like the evolution of Association Football itself.
Before the formation of the Football Association each town in England had its own game which it played according to its own local rules. When a side from one town played a team in another town they had to agree on the rules of the game before the first whistle. In 1863 the FA standardised the rules for England. When England went international, by playing Scotland in 1872, the rules had to be agreed and standardized between the two nations. Ten years later in 1882 the International Football Association Board set the rules for international competitions across the world. On its formation in 1904 FIFA adopted them as its own and ever since then the IFAB, based in England, has set the international standard for the world. Someone had to come up with the equivalent for image rights - the new international 'rules of the game'. And that's what Guernsey has done.
So why now, and why Guernsey?
The "why now" is because image rights have more potential to be under attack now than at any other time, due to the World Wide Web. Not very long ago, copyright and trademark laws were enough because the illegal use of an image was reasonably easily identified and stamped on. Now, of course, the internet means that every single person has access to images with the click of a mouse, often infringing your rights. But just as the World Wide Web is a disadvantage you can turn it into a very real advantage by registering your image on a web-accessible statutory public register to assert your right to that image - a neat 21st Century solution to a 21st Century problem.
So "why Guernsey"? Guernsey has for many years been a leading offshore finance centre in the management of assets for wealthy individuals. This has included portfolios of trademarks, patents and other IP rights – usually for tax reasons. Some tax advantages available offshore even five years ago have disappeared and the concept of "offshore" has disappeared with them. The whole planet is now a digital global village, neither onshore nor offshore. Guernsey needed to adapt, which is exactly what it has done. One of its innovations has been setting up a world-class image rights regime, just like IFAB did for football in 1882. Guernsey's thinking has been ahead of the game and the island is hoping that those keen to protect their image will jump at the chance to have this additional and comprehensive level of protection.
Just as the success of every football side depends on teamwork, the same can be said for image rights. The Guernsey Intellectual Property Commercial Users Group (of which I am chairman) includes people from all the professions – accountants, lawyers, bankers, auditors, IP portfolio managers, asset managers, actuaries, patent attorneys and fiduciaries – all working together, adhering to the same professional code of conduct to ensure that their clients receive seamless first class service from this broad knowledge bank.
What's new?
Guernsey has created a brand new law – a tailor-made, bespoke solution which fits the needs of players today. There is a huge diversity of laws all over the world available to players to exploit their image rights. Some in common law countries are based on copyright laws and some on trademark laws. Others in civil law countries are based on the right to privacy. This complexity and confusion causes huge problems. Today we're living in a very different world than we were even 20 years ago. Trying to force modern-day image rights into existing laws dating back centuries is like forcing square pegs into round holes. Something had to be done. Guernsey started with a blank sheet of paper, asked the question: "What regime is needed for image rights in today's fast-moving world?" and has come up with the solution.
Why register?
The purpose of registering your personality (personnage) is to assert your right to your individual personality and with it all your distinctive characteristics such as, photographs, likenesses, characteristics, illustrations, gestures, stage names, signatures and cartoons – whatever can be exploited and used. A person should have control over the distinguishing features of his or her own personality which have distinctive value and can be exploited for that value. Registration on a public register is the most effective way of doing that - and it is not just for the famous. A young player who is not yet famous but has dreams of greatness is a perfect candidate for registration - and it is not only footballers and other sports personalities who can register their image rights – anyone can.
Detection and Enforcement
Of course if you are interested in registering your image it is important to know that the mechanisms in place, to detect illegal use of your image and the enforcement of penalties for such use, are up to scratch. Trade protection bodies like the Performing Right Society in the UK have been doing this for decades but what is needed today is an enhanced service to detect and enforce infringements of image rights across the world. This is where Guernsey has upped its game. Enforcement of image rights is not simple and it is not a developed part of law across the world but it is developing with increasing effectiveness and speed.
Tax
Guernsey's government doesn't permit the island to be used for avoiding tax that should be legitimately paid elsewhere. However, it is very much in the business of enabling personalities to arrange their affairs, including intellectual property rights, so as to legally mitigate the tax that is payable. This is particularly important when the owner of image rights earns (or may in the future earn) income from those rights in several countries. Registration of your image right in a tax-neutral jurisdiction like Guernsey makes for an ideal international tax planning arrangement. Being able to declare to the world on the web that you have registered your image, you assert your sole right to use it and it can be defended is a great start.
Image Rights (Guernsey) Limited
It is for the above reasons that I and my colleagues at Trinity Trust Company Limited (TrinityTrust.co.uk) formed Image Rights (Guernsey) Limited to provide specialist services for the registration of personalities and images and the incorporation of companies to manage image right portfolios. Each client's corporate structure is tailored to his or her own needs with a focus on preserving capital and maximising earnings.
What's really important now is to get advice from those who understand the new image rights legislation, who can talk to the registrar, get things done quickly and efficiently and offer the best wealth management services. Right now, we believe that's us. Guernsey has set the new world image rights standard and we set the standard for wealth management.
Originally published in FC Business, January 2013
For more information about Guernsey's finance industry please visit www.guernseyfinance.com.
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.