Celebri­ties have im­age to pro­tect

Re­cent cases show fa­mous peo­ple can­not take in­tel­lec­tual prop­erty for granted

Business Day - Business Law and Tax Review - - FRONT PAGE - TANITH ROBERT­SON

AHOST of re­cent celebrity in­tel­lec­tual prop­erty (IP) cases high­light why celebri­ties should be proac­tive in pro­tect­ing their IP rights. It has been well re­ported that singer Bey­oncé is hav­ing le­gal is­sues with a third party who is sell­ing items in­clud­ing cof­fee mugs and sweat­shirts un­der the not-too-sub­tle name Fey­oncé. In one case, a mug was ap­par­ently branded “Fey­oncé: He put a ring on it”, seem­ingly in ref­er­ence to Bey­oncé’s pop­u­lar song Sin­gle Ladies.

In an­other ex­am­ple, Brazil­ian soc­cer star Pelé has sued Sam­sung in the US for im­proper use of his iden­tity. He claims Sam­sung used a looka­like in a news­pa­per ad­vert for tele­vi­sion sets. Ac­cord­ing to the court pa­pers, the man in the ad­vert “very closely re­sem­bles” Pelé, and the claim is that the ad­vert will con­fuse the pub­lic and harm Pelé’s en­dorse­ment rights.

Pelé is seek­ing a stag­ger­ing $30m in dam­ages, pre­sum­ably be­cause he is still very mar­ketable — he has en­dorse­ment deals with ma­jor com­pa­nies such as Volk­swa­gen, Sub­way, Emi­rates and Proc­tor & Gam­ble.

The re­cent death of an­other foot­balling leg­end, Jo­han Cruyff, led to the pub­li­ca­tion of an ar­ti­cle about the im­pact Cruyff had on Dutch por­trait law. The Dutch Copy­right Act says a por­trait in­cludes all recog­nis­able im­ages of a per­son, in­clud­ing pos­ture and car­i­ca­ture, and al­lows a per­son to ob­ject to the pub­li­ca­tion of their por­trait in cer­tain cir­cum­stances.

The law goes on to say that, in cases where the per­son por­trayed com­mis­sioned the por­trait, the por­trait can only be pub­lished with their con­sent. Where the por­trait wasn’t com­mis­sioned, how­ever, the per­son por­trayed can only ob­ject if they have a “rea­son­able in­ter­est”, which in­cludes a com­mer­cial in­ter­est, as well as is­sues of pri­vacy and ridicule.

Cruyff at one stage sued a pub­lisher for us­ing pho­tos with­out his con­sent, and the case went all the way to the Supreme Court of the Nether­lands. The court made it clear that the por­trait right is not an ab­so­lute one and it must be weighed against the right to free­dom of ex­pres­sion. In other words, the news value that at­taches to pho­tos of celebri­ties must be weighed against the celebrity’s com­mer­cial in­ter­ests, such as the right to de­mand a fee.

These cases bring home how eas­ily the rights of celebri­ties can be ex­ploited. There are, how­ever, var­i­ous reme­dies avail­able to them. US law, for ex­am­ple, recog­nises spe­cific pub­lic­ity or im­age rights.

In the UK, no such in­de­pen­dent right ex­ists, yet singer Ri­hanna suc­cess­fully sued re­tailer Top­shop for us­ing her im­age on a T-shirt with­out con­sent. Re­ly­ing on the com­mon law ac­tion of pass­ing off, Ri­hanna suc­cess­fully ar­gued that peo­ple see­ing her im­age on a T-shirt would as­sume that she had en­dorsed the prod­uct. By do­ing this, she man­aged to es­tab­lish

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