Jose Luis Romanillos, Managing Director of "Romanillos & Cook" Image Rights Ltd, examines the issue of Image Rights in the context of Rihanna's recent court case.
Modern life, it has to be said, is lived through and with the lens – be it via the TV, computer, camera or phone. Images of famous people in particular are "Big Business" – they help sell the products we all buy. But who can rightfully exploit them? And how can one's own image be protected against abuse? In this article I look at the recent Rihanna "Image Rights" case to show the problems associated with exploitation of one's image and show why the new and innovative Guernsey Image Rights (IR) Legislation was created to offer certainty of ownership and an increased level of protection against abuse of one's image to celebrities and stars.
The guiding principle of Copyright Law in the UK is that a photo is owned by the person who takes it, unless contractually agreed otherwise. So, one would assume that the Copyright Law addresses the issue of use and abuse of images? Well, this is not really the case. Firstly, there is a shelf life to copyright – and in terms of photographs the period is 25 years. What happens afterwards? Quite simply, the image then falls into the public domain and becomes public property, freely usable by anyone.
A registration of one's image(s) in the Guernsey IR register, on the other hand, can be for an indefinite period. Secondly, and more importantly, how do you stop abuse and exploitation of your image? What action can an individual take if their photos are used by a third party without their permission for commercial gain or to defame their character and reputation? Well, as recent cases have shown (Eddie Irvine, Naomi Campbell, Max Mosley, Rihanna), you need to take legal action using an assortment of recourses available to you in the UK, that include false endorsement, passing-off, defamation and breach of privacy. This is costly and at the heart of the defence is the need to provide "evidence" for both the abuse and the image rights. Rihanna's very recent "Image Rights" case is a good example of the issues. The clothing chain Topshop decided to sell a set of T-Shirts that carried a recognisable image of Rihanna – without obtaining her permission or licensing arrangement. Rihanna took Topshop to court and eventually won her case under the offence of "Passing Off".
However, the judgement of Mr Justice Birss should be of great concern to all famous people out there. And the fact that Topshop are planning to appeal against this judgement still leaves the matter unsettled. The Guernsey IR Legislation became law in December 2012 and its primary "raison d'être" was to provide protection to an individual, group or entity against exploitation or abuse of their Image Rights by a third party for commercial gain, without prior agreement. This registration of one's Personality and related image(s) at the Guernsey Registry in fact provides three very useful things.
Firstly, it is the hard and indisputable evidence that the Personality and related images have been recorded in a public register. Secondly, it can be used as a threat to warn possible infringers that you will come after them unless matters are resolved – thereby facilitating a mutual agreement without recourse to the courts. And thirdly, as a last resort, a Court Order can be sought. In Rihanna's case for example, internet sales of the T-Shirt or viewings of it on TV would have triggered a breach of the Guernsey IR Law and Rihanna could have then sought a Guernsey court order to then try to enforce in the UK. There are two serious aspects to the Court's judgement, however, which could clearly have serious implications for similar future infringements, especially in the football world. First of all, one of the reasons why the judgement came down in favour of Rihanna was the fact that she lived in the Pop World, which is one closely associated with fashion and clothing.
The conclusion here is that if the defendant had not been a fashion icon, but perhaps a professional footballer, then the case could have been lost. Even more significant, though, was the Judge's summary. His message was quite clear: - "There is no such thing as Image Rights in the UK". Well, I can tell him this – there is here in Guernsey!
1. PROTECTION – an extra layer that can sit alongside Copyright and Trade Mark, focusing on specific protection of Image, Logo and Brand. No expiry date and global coverage provided.
2. EVIDENCE – a registration provides confirmation that one's Image Rights have been recorded.
3. SPEED – a registration can be processed in 20 working days
4. THREAT – a public record available globally that acts as evidence and warning against infringers.
5. MARKETING & PR – great promotional opportunity to market the individual or company.
6. ASSET – Image Rights are designated as an "asset class" and can be valued, traded and licensed.
7. FLEXIBILITY – Images etc. can be added to the registration at any time in the future.
8. GUERNSEY – solid, well-regulated jurisdiction with Common Law practices.
9. R & C – Independent Agency enjoying access to large network of service providers.
Individual - £3,000
Team - £6,000
Entity - £4,000
These costs are for a 10-year registration period. There are no annual fees except for a three-yearly renewal of £100 per image.
Originally published in FC Business, November 2013.
For more information about Guernsey's finance industry please visit www.guernseyfinance.com.
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.