The introduction of the Image Rights (Bailiwick of Guernsey) Ordinance 2012 in December 2012 means that, for the first time, anywhere in the world, individuals and their agents can register and protect their personality and register images associated with that personality. The practical effect of this is to allow personalities and celebrities the ability to register personal identifiers in a way not possible through trade marks or other traditional IP means.
The key driver to the introduction of this legislation was the realization that traditional forms of IP are not sufficient for the image-driven celebrity world we live in today. Where an image can be reproduced, adopted and re-published within seconds, the constraints of trade mark and copyright laws are all too apparent for the modern day celebrity: the recent row between Rihanna and Top Shop neatly illustrates these inherent limitations. In addition, most sports stars and entertainers earn the bulk of their income, not from their ‘day jobs’, but rather from the endorsement contracts they receive as a result of their fame. This in turn makes their image increase in value, and their status and worth have further currency. Personal brands often have more resonance with an end audience than corporate brands, and one only has to consider the millions of followers for stars such as Lady GaGa and Rihanna to realize the power these stars are able to command.
Guernsey's legislation, therefore, looks to protect and put into context personal brand identifiers, for the first time anywhere in the world. Other countries such as the USA have personality rights, but these differ wildly from state to state and do not offer any sort of formal recognition of rights. The Guernsey rights have the ability to register any personal attribute or identifier related to the personality in question, giving great scope to the uses for the rights themselves, especially when linked to third-party endorsement contracts. For example, a sequence of images could be registered which related solely to a campaign and a licensing scheme built around those images. The formal licence can then explicitly refer to these registered rights, giving both the licensor and licensee over the rights.
Facts and analysis
The Image Rights Ordinance establishes a new form of intellectual property right, previously unrecognized in a registrable elsewhere. It centres on two key concepts: the ‘registered personality’ and ‘registered images’ which are associated with or registered against that registered personality. The core right of the registered personality has to fall into one of the following categories:
Natural persons: This covers any sole personality such as Usain Bolt, David Beckham or Lady Gaga. This can be any personality who is alive or who died within 100 years of the application. This would therefore cover personalities such as James Dean, Marilyn Monroe and Elvis Presley.
Joint personalities: This covers two or more natural or legal persons who are intrinsically linked together such as Morecambe and Wise or Ant and Dec. The constituent parts of a joint personality cannot be changed.
Groups: An example of this would be England football team or the group Queen. Both of these groups feature memberships which change over time. It could be argued that a group such as U2, whose members have not changed, may be considered a joint personality.
Fictional characters: Fictional characters will be able to be registered singly, jointly or in groups. Examples of each would be Winnie the Pooh, Tom and Jerry and the Teletubbies, although if the component parts of the group were never going to change then a joint personality right might be preferable.
Legal entities: A legal entity in whatever form will be able to register itself as a personality and will be able to register images associated with itself. This means that a corporation such as Marvel or Disney would be able to register and associate names and images of the characters it creates.
Having established a personality right in one of these categories, image rights can then be added relating to that personality. These can be applied for at the same time as the personality right or at any time in the future. Examples of the wide range of image rights can be:
the name of a personage or any other name by which a personage is known (eg Lady Gaga or ‘Gaga’);
expressions (verbal or facial);
any other distinctive characteristic or personal attribute of a personality; and/or
photographs, illustrations, pictures, moving images, electronic or other representations of a personality.
We see three main benefits of registration.
Clarity of right
All of the rights mentioned above will be registered on the register, and can include all of those features that are so difficult to define in a contract. Every IP practitioner has grappled with what a ‘gesture’ or ‘mannerism’ means in that definitions section before—now it really means something and can be directly referred to in relevant contracts. This, in turn, makes the job of licensing these rights much clearer and effective. There is also far less scope for future disputes over the extent of the original agreement.
At the moment, it is not clear what happens to the rights to someone's image after death. The closest we get is in some states in the USA where publicity rights can last after death—for varying lengths of times depending on which state they died in and only then if they are famous. Under English law, where image rights are not recognized, it is very difficult to see how the image rights of an individual can go on beyond their lifetime.
The Guernsey Image Right is a renewable right that can last in perpetuity. It can be registered for individuals who have already died (provided that they died within 100 years of the application being made to the registry), and there are a number of estates which are talking to us about registering the image rights of individuals who have already died. If you have a client who is famous and would wish his or her image to be passed to the next generation or who would wish to try to protect his or her image after death, then a Guernsey Image Right really should be considered. Like the licensing points above, reference can be made in any will to the Guernsey Image Right and this clarity of right is extremely useful when drafting a will.
The licensing of image rights and the ability to exploit an individual's image can be extremely valuable rights. The case law in the UK allows the different income streams to be treated differently for tax purposes. Having a Guernsey Image Right helps to give certainty to this structuring. There are some arguments that an image right is nothing more than personal goodwill. The argument runs that personal goodwill is not assignable. However, registering and assigning a Guernsey Image Right creates a clearly definable right that is very much assignable: the law says that it is assignable, and allows this to be a registered transaction on the register. An Image Rights company would typically hold a portfolio of IP rights, including some trade marks. Having an image right in that portfolio is helpful in managing and exploiting the rights and also potentially in assisting in the robustness of the structure.
Since December we have seen a large cross-section of celebrities, personalities and sports people register their rights in Guernsey. The one thing they all have in common is that they all derive a significant portion of their income from the use and exploitation of their images. The cult of celebrity and the widespread use of image rights will only be reflected on the Guernsey Register, and it is our belief that these rights will gain even further traction over the coming months. As a bold piece of legislation, they give the ability to register IP currently unavailable anywhere else in the world, and that alone provides a compelling reason to register.