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
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.
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