Celebrities have image to protect
Recent cases show famous people cannot take intellectual property for granted
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