The extent to which celebrities exploit their brands through lucrative sponsorship and endorsement deals emphasises the commercial value and importance attached to such deals.
In the UK celebrities have normally relied on the law of passing off to protect their image/publicity rights since the UK Courts have made it abundantly clear that there is “no such thing as a free standing general right by a famous person (or anyone else) to control the reproduction of their image”.
The option that has been available to celebrities in the UK is to stretch the law of passing off in cases where the public incorrectly believes that the celebrity in question has endorsed the products in question. In the case of Eddie Irvine, the retired British racing driver, a claim for passing off was allowed in the UK when TalkSport Radio used doctored photographs of Eddie Irvine in an advertising brochure, which the Courts found misleading as it falsely gave the impression that Eddie Irvine had endorsed the products.
More recently, Rihanna’s passing off claim was upheld by the UK Court of Appeal. The Court again reiterated the point that whilst there is no ‘image’ or ‘character’ right per se in the UK, where the activities of the defendant amount to a misrepresentation that caused or is likely to cause damage to the goodwill of the claimant this can amount to passing off.
The situation is somewhat different in most other countries, such as the US and Italy for example, that offer celebrities image/publicity rights protection and appear to recognise the attached commercial value. In these countries celebrities can prevent the unauthorised use of their image by third parties.
Italian law goes even further to assert that a celebrity can take action when there has been unauthorised use of elements that evoke the celebrity. Recently, the Italian Court in Milan held that the unauthorised use of evocative elements of Audrey Hepburn’s image in an advert was unlawful. The court stated that Audrey Hepburn’s image should be protected against unfair use of a number of elements because of the evocative value which allowed the public to relate to her directly and unequivocally.
The language used by the Italian Court here evokes that used in Trade Mark Law. EU and UK Courts have in the past stopped third parties from using the renown/reputation afforded to the claimant if by doing so the defendant is taking an “unfair advantage by seeking to ride on the coat-tails of the trade mark with a reputation".
The approach taken by the Italian Court in the Audrey Hepburn case follows a line of similar Italian and US cases. The UK Courts, however, remain mindful of introducing an image/celebrity right, and maintain that if such a right is to be protected under English law then it should be the job of Parliament to introduce it, and not the Courts.
Therefore, the position under English law remains the same - the extent to which celebrities can prevent unauthorised use of their image in the UK remains minimal.