John Ogier, Registrar of Intellectual Property of the Bailiwick of Guernsey, explains the rationale behind Guernsey's introduction of image rights legislation.
A person's most valuable asset is their personality - not their personal wealth. Yet in the 21st century, the wealth associated with a personality is becoming increasingly evident. This includes the right to use your personality as your business and to prevent other parties from exploiting or using your personality without your permission. Recent examples of the wealth in a personality include the Northern Ireland golfer Rory McIlroy (where it is reported that his association with Nike could earn him up to US$20 million per anum), also the well-known football personalities Cristiano Ronaldo, Neymar and David Beckham, the latter having created a whole brand around his personality.
The income arises from endorsements, personal appearances with the sponsors and branded merchandise rather than the direct performance of their talent. A sponsoring or advertising firm benefits from the added value to their brand and the marketing exposure resulting from association with a high profile athlete or celebrity. The rights of personality also include the right to prevent your name and personality being exploited economically without your permission. In May it was reported that the singer Rihanna was suing Topshop for US$5 million for selling t-shirts bearing her image without her consent. It is not just individuals whose economic personality is being recognised in commerce.
A BBC News item refers to Ron Layton who is the founder and head of Light Years IP, an NGO that specialises in securing IP rights in developing countries. He cites the example of the Maasai Mara people of Africa who have had aspects of their culture used in commerce. He estimates that about 80 companies around the world are currently using either Maasai images or their name (or a similar name). Examples of this include a range of accessories called 'Masai' made for Land Rover, 'Masai' barefoot technology, which makes speciality trainers, and the high end fashion house Louis Vuitton, which has a 'Masai' line that includes beach towels, hats, scarves and duffle bags. Ron Layton is seeking to protect the Maasai Mara brand and he considers that it could be worth more than US$10 million per annum. He has concerns not just about the financial side, but also for the unique cultural aspects of Maasai life which are particularly valued by the tribe and open to use in commerce.
Alongside the commercial reality of image rights, the judiciary are increasingly recognising image rights. Lord Hoffman in Campbell v MGN Ltd (2004) opined: "Naomi Campbell is a famous fashion model who lives by publicity. What she has to sell is herself: her personal appearance and her personality. She employs public relation agents to present her life to the media in the best possible light just as she employs professionals to advise her on dress and makeup. That is no criticism of her. It is a trade, like any other."
The government, in reviewing policy making over the next 10 years, recently published a report entitled 'Future Identities' by Professor Sir John Beddington CMG, FRS Chief Scientific Advisor to HM Government and Head of the Government Office for Science. This report recognised that people's identities have personal, psychological, social and commercial value. The report also examined the role of hyper-connectivity which is driving social change and expectations and which is creating a wealth of personal data that can be 'mined' for commercial insights by private sector companies and potentially by government for policy purposes. This means that people's online identities have value in a way that is new. There was no legislation specifically designed to protect the personality and enable image rights to be appropriately structured and managed. This is in spite of the commercial reality, the increasing judicial caseload and the government recognition of the value of the personality and associated image rights in the 21st century. This led to uncertainty as to the nature of the right and created difficulty in valuing and licensing the wealth associated with a personality.
Guernsey as an international finance centre (IFC) recognised this void and developed legislation which was debated through its democratic processes and examined by its legislature. The Image Rights (Bailiwick of Guernsey) Ordinance, 2012 is the first piece of legislation to specifically address this area. Essentially it addresses the right of a person to determine the use of their image and the right of a person to benefit from income arising from the use of their image. It is arguably one of the first new intellectual property rights specifically designed for a 21st century economy when compared with many of the existing rights which evolved from the industrial revolution of the 19th century. The legislation was developed with elements based on trade mark law – in relation to registration with absolute and relative grounds for registration; copyright law - in the exceptions and limitations through fair dealing; together with aspects of design rights and some patent provisions.
There are substantial new aspects to the legislation while the legal concepts, where appropriate, are based on existing intellectual property law, which provides a basis for some jurisprudence for future court decisions. The island enjoys a rich heritage of law from its Norman French roots and therefore it is entirely appropriate that a founding concept of personality in the legislation is designated as the 'personnage'.
The 'personnage' is the creator of their personality, the person through whom the personality is expressed, the person as expressed in many images, and the first proprietor of their personality. A personnage can be a:
- natural person (living or deceased within 100 years from the date of application);
- joint personality;
- group or team;
- legal person; or
- fictional character.
This breadth of definition provides great scope and flexibility in the creation of contracts or licenses in commerce.
The personnage becomes recognised as a personality under the legislation through registration of their personality. Under the registered personality, images can be registered and protected, this includes their name and other names. Expressions of their personality can be voice, signature, likeness, appearance, silhouette, feature, face, expressions, gestures, mannerisms and other distinctive characteristics or attributes, it also includes fixations of the personality in photographs, illustrations, pictures, electronic representations. By registering their personality and associated image, it is being recognised that the personality is distinctive, belongs to the proprietor, has value and can be traded, will be protected and is a property right.
As a property right, image rights as with any other items of property can be assigned, licensed, capitalised, sold and purchased, securitised, and those image rights that are Guernsey registered may be identified with the image rights symbol 'IR'. As this is a powerful new economic right, it is important to balance the personal interests with the public and policy interests. The image rights legislation, therefore, has express provisions balancing image rights against other legitimate interests, in particular, safeguarding freedom of speech and matters of public interest, including freedom of media reporting. These exceptions and limitations include use in parody or satire, education, research, public administration and law enforcement, along with news reporting and use by the proprietor, or with the proprietor's consent. In order to service the registration needs, the legislation creates professional service providers designated as registered image rights agents.
All the agents have undertaken training in image rights and are registered on the Intellectual Property website, http://ipo.guernseyregistry.com/article/3908/Products--Services. This also contains a copy of the
This is also contains a copy of the legislation and guidance on registering the right. There is a schedule of fees, which includes, for example, the fee for the registration of a personality, which is £1,000 for 10 years (equivalent to £100 per annum) and includes the registration of one image.
Additional images can be registered at £100 for three years (equivalent to £33.33 per annum). Agent fees are additional to this. The object of the overall package is to provide a valuable investment opportunity for the personality and their associated images. Image rights will subsist alongside other intellectual property rights and there is no conflict or inconsistency between the image rights legislation and the various obligations with respect to foreign intellectual property rights owners and the international intellectual property conventions.
Having registered a personality with associated images, the right may then be structured through Guernsey by incorporation in a company. If there is more than one personality registering within a portfolio of rights, consideration may be given to using other corporate vehicles which the island has developed, such as protected cell companies (PCC), or incorporated cell companies (ICC).
These entities typically used in the captive insurance business are equally well suited to managing the various profit and risks associated with registered personalities, for example, a football club could incorporate as a PCC and manage the individual player rights and revenues through individual cells within the structure.
Defining the image right enables value to be associated with the personality. This may be an income value or a capital value. These rights may then be licensed with contracts tying these back to Bailiwick law for the structuring and management of the rights. There are other products and services which Guernsey as an IFC can also offer, for example, asset management, pension planning, insurance, banking, fiduciary and legal services.
In the short lived world of the modern celebrity or sports star, these related services, for example in pensions and insurance, can be particularly beneficial.
The importance of image rights is often overlooked in succession planning and wealth management after the personality is deceased. This may not only be for wealth management but also as a means of determining the inheritance associated with your personality and the purpose to which any future income streams may be directed,
for example, Albert Einstein not only elucidated the general theory of relativity, but also had the foresight to assign his future intellectual property rights, including use of his image, to a charitable trust established for educational purposes.
Image rights represent a new area of economic competitiveness in the global economy. It is, for example, unlikely that we will ever become competitive with China or India again in the manufacture of high volume garments like t-shirts, however, whilst the Chinese or Indian consumers may not buy our t-shirts, they certainly recognise the brand value of personalities like Beckham, Maasai, Manchester United and Gangnam Style.
Image rights also provides for registration of persons regardless of their fame or fortune. Many in the future may be interested in registering simply to protect their identity and personality in the electronic world of hyper connectivity and data bases. Traditional economic thinking from the 19th century industrial revolution classified the person as labour in the 'cost of production'. In the 21st century people are creating wealth and new economic opportunity through the outworking of their creative talent. Through the expression of their personality, they are creating wealth, not adding cost. This can be the Maasai people who are creating value through their very culture, or David Beckham who has developed a global brand beyond football, or Albert Einstein assigning his image rights to enable a charitable foundation to benefit from the income after his death.
This new economic reality needs new tools to manage the wealth of personality.
The Guernsey Image Rights Legislation and Register is designed to help meet this need. Image rights are a new treasure to be found in an island already renowned as an IFC.
About the Author: John Ogier is the Registrar for all the fields of Intellectual Property in the Bailiwick of Guernsey. This includes Trade Marks, Patents and Biotechnological Inventions, Designs, Copyright, Performers Rights, Database Rights, Plant Variety Rights. He has been leading the modernisation of Guernsey's intellectual property environment; more recently as the architect of the Image Rights legislation he has worked with industry, the legislature and leading international intellectual property academics in order to produce this new right. As an economist, he is particularly interested in making an economic opportunity from these most valuable assets.
Originally published by IFC Review, August 2013.
For more information about Guernsey's finance industry please visit www.guernseyfinance.com.
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