Guernsey image rights specialist Jason Romer says that a Guernsey image right is the only way for an individual to have their image rights properly registered and clarified, after the pop singer Rihanna won her legal battle with clothing retailer Topshop over a t-shirt bearing her image.
Mr Romer, partner at Channel Islands law firm Collas Crill, was asked to speak to Shelagh Fogarty, lunch time presenter on BBC Radio 5 Live's specialist news and sports station, about the Rihanna case this week.
The facts of the case were straightforward enough, he said. Topshop had used an image of Rihanna on a t-shirt, having acquired the copyright permission (and an indemnity) from the appropriate entity, and had placed the t-shirt for sale, initially calling it the 'Rihanna' t-shirt.
While there was no copyright infringement, Rihanna felt that there had been an infringement of her rights as a result and sought an action for passing off (suggesting a connection with the singer that did not exist). The judge agreed that there had been passing off as fans of the star were likely to have bought the t-shirt because they thought it was endorsed by her. High Court judge Mr Justice Birss had said in his two-minute judgment there was "no such thing as a general right by a famous person to control the reproduction of their image."
Mr Romer and David Evans, Director of Collas Crill IP, highlighted in a client briefing on Wednesday that, in contrast, a unique registrable right has been created in Guernsey in order to deal with issues such as this in a unique way.
Mr Romer said: "While this was a win for Rihanna, it neatly illustrates the problems for anyone seeking to bring an action in this area. The judge also made reference to the fact that there is no offence in the UK for placing someone's image on a t-shirt per se, subject of course to any copyright or privacy issues."
The judge made it clear that there is today in England no such thing as a free standing general right by a famous person (or anyone else) to control the reproduction of their image. This contrasts with the Guernsey position where a unique registrable right has been created, in order to deal with cases such as this in a direct way.
Mr Romer added: "This case rests on its unique facts, which would probably only work in a handful of cases.
"For anyone else who can't rely on passing off and wishes to have their image rights registered in some way, then the Guernsey Image Right remains the only option available. We see this type of case becoming far more commonplace in the future, as the currency of image continues to grow. It will be interesting to see the part that the Guernsey right has to play in this changing position."
Guernsey is the first jurisdiction to create a registrable image right, enabling effective management and control of the commercial use of a person's identity, and images associated with that person, including distinctive expressions, characteristics or attributes. Collas Crill IP has worked with a number of high profile personalities from the worlds of sport, music and entertainment to protect their personal brand and identity since the image rights registry's launch earlier this year.
The full Radio 5Live interview can be listened to on BBC iPlayer, listen at 1:51.40. http://www.bbc.co.uk/iplayer/episode/b037kz27/Shelagh_Fogarty_31_07_2013/
For more information about Guernsey's finance industry please visit www.guernseyfinance.com.
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