Guernsey: Image Rights: I See Dead People...

Last Updated: 25 June 2013
Article by Jason Romer and David Evans

It used to be that when a famous personality died that was pretty much that. Whilst they may have left a body of work which was perhaps repackaged or reinterpreted over time, that was the extent of a dead star's posthumous exposure.

Not any more. In the last few weeks I have seen product launches involving Frank Sinatra for Jack Daniels and Andy Warhol for the up market pram maker Bugaboo to name but two. Such brand extensions used to be the preserve of the very much alive and yet it seems that such endorsement is clearly able to continue long after death - who would have thought Audrey Hepburn was a fan of Galaxy chocolate?

The rationale behind such associations is straightforward - the brand gets a link with a famous personality whilst the estates of these artists collect a very nice fee. In addition, there seems to be far less work involved when dealing with someone who has passed.

The most important asset that many of these personalities have left behind is clearly not the work they may have created during their lifetime, but the value of their enduring image. Indeed, in the case of someone like James Dean, who only made three movies during his lifetime, the enduring cool factor is something brands will be very happy to associate themselves with. Tapping into this market is key for the estates of these artists as it is their only long term revenue generator. Whilst the value of a Warhol original has escalated beyond the reach of most, none of this actually benefits the estate of Warhol unless they can capitalise on this popularity in some way, hence the attractiveness of brand tie ins.

Whilst the rationale of these collaborations is clear, the intellectual property protection for the dead is far less clear or well developed. Copyright may protect the creative works for up to 70 years after the death of the author, but trade mark rights are less effective in this area. The reason for this is that the main function of a trade mark is to denote the origin of goods or services. This function is questioned when the subject of the right is a celebrity, as no one actually believes that the goods or services in question actually emanate from them directly.

Additionally, trade marks can only protect a small range of things such as names and logos. When it comes to personal identifiers such as signatures, nicknames or likeness, the ability of a trade mark to ably protect these is much more restricted. This leaves the celebrity client with a large gap in their ability to protect their most valuable asset.

None of these traditional forms of IP protection deal with what is actually valuable in today's linked up, celebrity driven world - namely, the image of the personality involved. This is the driver behind the recently introduced Guernsey Image rights legislation. This is a piece of law which offers the celebrity client (although there is no requirement to be famous) the ability to protect a whole host of personal identifiers such as mannerisms, gestures, likeness etc. and in any format that this may appear whether this is a still image, a video clip or a computer generated image.

The law allows a whole range of different personality categories to register as personalities from individual humans to fictional characters. In addition, these can be registered at any time up to 100 years after the death of the personality, enabling estate managers, trustees and beneficiaries the ability to control and benefit from these valuable rights. Corporate entities can also be registered as personalities which allows for a very convenient way for any company who's main role is to generate images to have those images registered and associated with themselves.

In practice, Guernsey Image Rights allow for the registration of a core personality right, around which are registered image rights associated with that personality. The core personality right lasts for a period of 10 years, and the image rights for 3 years. Once registered, these rights are then able to be licensed and dealt with just like any other piece of property. Ownership of the rights can vest in any structure and, perhaps most importantly, these rights can be passed on to the next generation. As all of the available rights are able to be renewed indefinitely, this provides a potentially perpetual right.

Going back to the Warhol example given at the start of this piece, he could be registered as an individual personality and images or other associated personal identifiers registered. There is also the ability, in the case of an artist like Warhol, for the images of the art itself to be registered as images associated with that personality. This is not a replacement for copyright, but rather adds to those traditional rights by creating a more personal link between the creator and the images. Those images can then be licensed with clarity, as their registration is something which now appears on a formal register for the first time.

This clarity also allows for a structured, managed portfolio of IP assets, which together with trade marks, copyright and other forms of more traditional IP, represent a modern approach of registering and protecting an individual and their creative persona.

The Guernsey Image Rights represent a major step change in the way that brands (for that is what a modern day celebrity represents) are managed. In has long been recognised in the corporate world that a cohesive brand strategy yields long term economic benefits. These principles can be easily applied to personalities in the same way. A measured, strategic approach to brand management gives the ability to deal with core rights but remains flexible enough to take advantage of short term marketing opportunities. The Guernsey Image Right allows for this flexibility for individuals due the split of personality and image rights as described above and because images can be added at any time, this means that the portfolio can remain current and relevant, something which is vary hard to achieve through trade marks, and would inevitably come at a much higher cost.

The celebrity or their heirs should also ensure that social media names are all registered and utilised in order to complete the portfolio of rights and to maintain a consistent brand message. This is just as important after death as a correct and considered long term strategy adds both value and helps maintain the quality of endorsement deals. One only has to consider how fashion houses have progressed long after the death of their original creator to understand how well managed brands can prosper despite such events. The likes of Dior, YSL and McQueen have all managed this transition and have repositioned these brands accordingly to remain relevant. The same can just as easily be done with personal brands.

As the market for celebrity and personality driven brands and images only looks set to continue and expand, the Guernsey Image Right offers a real advantage to brand owners to protect and manage these valuable image rights. In addition, they provide a unique mechanism to pass on these rights for future generations exploit and manage them effectively and with clarity.

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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