The High Court recently issued its decision on Rihanna v Topshop, a dispute in which Rihanna successfully argued that the use of her image on t-shirts sold by Topshop amounted to passing off.
In 2012, fashion retailer Topshop sold t-shirts bearing an image of the world-famous pop star Rihanna. Topshop had permission from the photographer, the owner of the copyright in the image, but did not have permission from Rihanna to use her image.
English law does not protect so called “image rights”, i.e. the right of a famous person, or anyone else, to control the reproduction of their image. Rihanna therefore took action against Topshop under the common law tort of passing off. This required Rihanna to prove three things:
- That she had goodwill amongst relevant members of the public;
- That the sale of the t-shirts by Topshop amounted to a misrepresentation, i.e. consumers would have been deceived into buying the t-shirt because they thought it was authorised by her; and
- That the misrepresentation caused, or was likely to cause, damage to her goodwill.
His Honour Judge Birss stressed at length that the sale of a garment bearing an image of a famous person is not, in and of itself, passing off. The issue is one of fact, and will always depend on the particular circumstances of the case. In the present case, the High Court held that Topshop’s sale of this t-shirt did amount to passing off. The relevant circumstances in this case included:
- Rihanna’s reputation as a style icon and her well-known association with certain fashion brands;
- Topshop’s previous efforts to establish and emphasise a connection in the public mind between Rihanna and its stores; and
- The fact that the image used was taken during an official music video shoot and had the appearance of a 'publicity shot'.
It is clear from the judgement that the mere use of an image of a celebrity on clothing, without consent, will not automatically give rise to a cause of action under passing off. Each case will stand or fall on its own merits and facts. However, in the right circumstances, use of the image of a celebrity, without the celebrity’s permission, can amount to passing off.