In a world first that will be of great interest to those involved in the sports and media industry, Guernsey will soon introduce a statutory regime for the recognition, registration and protection of celebrity image rights. Image rights, or an individual’s right to commercially exploit and protect their identity, have traditionally been protected through a range of common law and statutory tools, none of which are specifically fit for purpose. In terms of commercial exploitation of image rights, to date, celebrities and those dealing with them have had to rely on contractual definitions of their image rights with no legal certainty as to the rights that are subject to the contractual arrangement.
The proposed introduction of the Image Rights (Bailiwick of Guernsey) Ordinance, 2012 (the “Image Rights Law”) will provide solutions to many of these problems. It is anticipated that the final Image Rights Law will be approved by Guernsey’s parliament at either its June or July sitting. The Image Rights Law will create, for the first time, a registered proprietary interest in a celebrity’s identity by way of the registration of their personality and any associated images that they wish to protect. The Image Rights Law expressly provides that a registered personality is a property right, and that the person registered as the proprietor of the registered personality is the legal owner of the registered personality. As a matter of law this gives a celebrity (or any person to whom they may have transferred title to their image rights) legal certainty of title in a manner similar to other intangible property, such as trademarks. It also allows (and the Image Rights Law has specific provisions facilitating) the assignment of, licensing of, and granting of security over, the legal interest in a registered personality and image rights.
The ability to be able to point towards a registered proprietary interest, defined and protected in law by statute, in a personality and image will greatly assist celebrities in being able to separate earnings from their personality or identity from their other contractual and employment affairs. It will enable them to create a unique structure for the commercial exploitation of that personality or identity.
The Image Rights Law defines “image” widely, so as to include name, voice, signature, characteristics, appearance, verbal and facial expressions, gestures, mannerisms or any other distinctive characteristic or personal attribute of a personality.
Registration will also be available for the images of joint personalities and groups, and corporates as well as individuals may register, which will allow sports clubs, teams and musical groups to register, protect and exploit their image rights in a similar way. Further, the personality of a person (legal or natural) may be registered up to 100 years after their death or dissolution.
Registration will also allow celebrities to benefit from the statutory protection contained in the Image Rights Law for unauthorised use or infringement of a registered image. The remedies set out in the Image Rights Law include injunctions, relief by way of damages and the obtaining of an Order to cease and desist production and communication of the offending articles. The legal remedies will be easier to utilise than existing common law rights and remedies. The Image Rights Law has been prepared with an eye for the digital age, allowing swift and effective responses to online infringements.
Guernsey provides an ideal environment for celebrities to locate and manage their intellectual property assets. It has recently modified its intellectual property laws with a view to becoming TRIPS compliant and allowing worldwide protection to be obtained by a registration with the Guernsey Intellectual Property Office (“IPO”). The IPO itself provides a state of the art online register for filings and searching.
Guernsey is a tax neutral jurisdiction with no income tax levied on non-Guernsey resident individuals or Guernsey corporate entities owned by non-Guernsey resident individuals. There are also no capital gains or inheritance taxes, and no withholding taxes or deductions for payments out of the jurisdiction (although Guernsey has signed up to arrangements complying with the European Savings Tax Directive for payments to individuals resident in the EU).
Guernsey has modern and flexible companies and trusts laws which can be utilised for suitable holding structures for image rights registrations. Guernsey’s companies law also contains the ability to create cellular companies. These may be particularly attractive to clubs and agents looking to establish an offshore holding vehicle to manage a portfolio of image rights for different individuals, as each individual can have their rights and assets held by a separate ring-fenced cell. Cellular companies provide great economies of scale in terms of savings on administration and registration charges.