An original Russian version of this article was published in Kommersant, November 2014.
By Angela Adrian & Keith Laker, Icondia
There are few nations for whom the cult of personality matters more than Russia.
A nation, shaped profoundly by powerful leaders across the ages, instinctively recognizes the cultural and political importance of strong images. If a picture is worth a thousand words, then the modern icons of Russia are worth millions of rubles.
Copyright has been the traditional tool to protect the value inherent within an image – but the digital age has brought new challenges in the way that images are used.
One jurisdiction has met this challenge – Guernsey. It has an established track record of introducing innovative, successful legislation. The Image Rights Ordinance (IRO) continues by being at the forefront of modern intellectual property practice. The IRO allows people to take control of not just their image, but their whole personality in a way not possible anywhere else in the world. In simple terms, you can own yourself. You control who uses any aspect of your personality for commercial benefit. It is a bit like trademarking your personality.
Many celebrities already have contracts in place regarding the use of their image rights. The irony is that image rights as such do not exist in English law, and only exist in a limited way under Russian law. In contrast, by registering in Guernsey, robust property rights are created and recorded on a public register, which help underpin existing contractual arrangements. In the context of this law ‘image’ is not limited to a specific photograph, but includes any unique characteristic of the registered personality. That would include things such as voice, sounds, phrases, mannerisms and so forth. If it’s readily identified with the personality; it’s probably registrable.
Intriguingly, the concept of personality itself is extended to include natural persons (Maria Alexandrova, Roman Abramovich), legal entities (Kaspersky Labs), joint personalities (t.A.T.u.), group personalities (Bolshoi Ballet, Chelsea FC), fictional characters (Prince Myshkin) and deceased personalities (Mikhail Kalishnakov). Anyone can register; you don’t have to be famous to do so.
Companies and clubs can add another level of brand protection not previously possible. Families can continue to benefit from the success of loved ones, long since departed, because the property rights created in this manner can be bequeathed from one generation to the next.
Creating a whole new category of intellectual property is a bold move, but one which Guernsey is confident will be justified. The reception to this ground-breaking legislation internationally has been overwhelmingly positive, with most practitioners acknowledging that the law seems well-crafted and designed for the digital age, but tempering their enthusiasm with the inevitable ‘wait and see’ caution.
Many acknowledge that the sensible approach is to integrate registration in Guernsey as part of an overall intellectual property strategy, on the basis that it represents one more weapon in the arsenal of tools available to protect one’s personality rights.
As yet, despite a growing number of registrations, the Guernsey law has yet to be tested in the international arena. It is fully compliant with the various international conventions covering such matters and the expectations of these rights being upheld in other compliant jurisdictions is high. Moreover, Guernsey has reciprocal agreements in place with a number of jurisdictions for the automatic enforcement of money judgement orders, which are likely to form part of any action brought under the infringement of registered image rights.
Ultimately the law is predicated on issues of economic benefit. It is not a privacy law - but conceivably might be of use in certain circumstances. Neither is it driven by tax considerations - but again, registering one’s image rights in the only jurisdiction available might well mean that it becomes part of an overall corporate planning process.
Perhaps the question to be asked is what price do you put on your own personality? In a digital age personality matters and the Guernsey register provides the best possible protection currently available.