The Island of Guernsey remains the only jurisdiction in the world to offer its own image rights legislation and register. Fiona Le Poidevin, chief executive of Guernsey Finance, shares her expertise on the unique concept of image rights and its relevance today through this new law.
Launched in late 2012, the law has opened up a new chapter in asset protection and exploitation management. While initial take-up has been steady, if not spectacular, the register achieved its biggest coup last month when Manuel Pellegrini, manager of English Premier League (EPL) side Manchester City, registered his image rights through the Guernsey service provider Finsbury Image Rights.
Pellegrini took charge of the club, owned by Sheikh Mansour bin Zayed Al Nahyan's Abu Dhabi United Group, in the summer of 2013. The 60-year-old Chilean has previously managed Spanish giants Real Madrid, so he was already a well-known figure in the football world, but it is interesting to see that his arrival on UK shores has coincided with a desire to protect his personal brand and identity.
Other big names on the Island's image rights register include British tennis star Heather Watson, UK model Megan Williams, professional boxer Bradley Saunders and international DJs Tiesto and Afrojack. These individuals have clearly identified that the Guernsey legislation provides greater clarity in the definition of rights and a higher degree of protection from unauthorised use by third parties than is currently on offer in any other jurisdiction. The applications also show that they are comfortable and in tune with Guernsey itself, a British Crown Dependency that has become a leading international finance centre over the past 50 years. The Island has prominent banking, insurance, investment funds and private wealth industries, supported by a network of professional services, including multi-jurisdictional law firms and global accountancy practices.
In addition, Guernsey has gained a reputation for being an adaptable and innovative place to do business. This cutting-edge innovation includes Guernsey pioneering the cell company concept with the introduction of the Protected Cell Company (PCC) and launching our own regional stock exchange, the Channel Islands Stock Exchange (CISX). Guernsey becoming the first jurisdiction globally to recognise image rights in law and provide them with a register is just the latest step in the evolution of our financial services industry.
Image right concept
Traditionally, the main way to protect the IP in a personality has been through trademark rights. While there are other related IP rights that come into play, such as copyright and design rights, trademarks are the most relevant. However, they only go so far in protecting the rights of the modern celebrity and sport star, whose interests are more wide ranging than has historically been the case. Guernsey's worldfirst image rights legislation addresses the needs of the modern marketplace by allowing a personality to formally register not only images but also other characteristics of themselves.
The rationale behind it is that individuals should have control over their image and how it is used, but they also have the capacity to earn a livelihood from that image. The Guernsey legislation works on two levels: the registered personality right; and the underlying image rights.
A personality is a person's brand i.e. the name by which the person is known. To be registerable, it must be the personality of one of five types of person or subject, referred to as the personnage.
A personnage can be a:
- Natural person (living or deceased within 100 years from the date of application);
- Joint personality (two people intrinsically linked);
- Group or team (e.g. sports or music);
- Legal person (i.e. corporate); or
- Fictional character (of a human or non-human)
Under the registered personality, images can be registered and protected, including their name and other names. Expressions of their personality can be voice, signature, likeness, appearance, silhouette, feature, face, expressions, gestures, mannerism, other distinctive characteristics or attributes, as well as photographs, illustrations, pictures, moving images, electronic or other representations of a personality.
As yet there have been no cases of infringement or abuse to test the enforcement of the law in the courts. However, a court order secured in Guernsey is a threat that, up until now, has not existed. Not only is the register at the Island's Intellectual Property Office evidence of the recording of these image rights, but the threat of a Guernsey court order is a tool to deter potential infringers, in whatever jurisdiction they may be operating. A court may also query the value of an individual's image if they have not registered it on the only such register in the world.
However, there are a number of clear benefits that can be gained from registration. By placing image rights on a statutory footing it provides definition around the person as the individual and the brand. In doing so, it creates both certainty for tax matters and also a commodity which can be both protected and exploited. Designated as an asset class, image rights can be valued, bought, sold, licensed and used for collateral and sit readily within a managed company, foundation or trust structure.
In addition, the Guernsey Image Right is a renewable right that can last in perpetuity and be used as an effective tool for succession planning after the personality is deceased, particularly if a client who is famous wishes for their image to be passed on or protected after his or her death.
Guernsey's expertise as a private client and wealth management centre means it is perfectly suited to cater for all these requirements, particularly with the asset management, pension planning, insurance, banking, fiduciary and legal services available locally. In the often short lived world of the modern celebrity and sports star, these related services can be particularly beneficial.
Originally published in The Oath, November 2013.
For more information about Guernsey's finance industry please visit www.guernseyfinance.com.