Pop star Rihanna’s victory in a legal case against Topshop over the use of her image has been upheld by the Court of Appeal, which backed an earlier judgment against the British fashion chain.
The case arose in March 2012 when Topshop started selling a t-shirt bearing an image of pop star Rihanna taken by an independent photographer, during filming of the video for her 2011 hit single ‘We Found Love’. Topshop had a license to use the copyright on the image but no permission from Rihanna.
The superstar contended that the sale of such a t-shirt without her authorisation infringed her rights and as a result, on 30th March 2012, Rihanna filed a lawsuit against Topshop for $5 million.
In July 2013 the High Court found in favour of Rihanna. Mr Justice Birss ruled that whilst there is ‘no such thing as a general right by a famous person to control the reproduction of their image’ that in this instance a substantial number of consumers would buy the shirt due to the false belief that it was officially endorsed. This was harmful to Rihanna’s goodwill, causing loss of sales in her official merchandise and representing loss of control over her reputation ‘in the fashion sphere’.
This recent Judgment, upholding the claims of Rihanna on the specific facts and evidence in the case, suggests potential causes of action open to celebrities in this scenario whilst once again confirming that in English law there is no image right or character right which would allow a celebrity to control the use of his or her name or image. The causes of action, such as breach of contract, breach of confidence, infringement of copyright or, as in the Rihanna case, passing off are identified as the weapons with which a celebrity can seek to prevent unauthorised use of their image.
This is not the first case of its kind where celebrities have been successful in protecting their image rights. Michael Douglas and Catherine Zeta-Jones were successful against Hello! Magazine in preventing the publication and use of unauthorised photographs taken at their wedding and Eddie Irvine also successfully sued Talksport for passing off over its unauthorised use of his image.
Rihanna’s case, along with the others referred to above, illustrate how fact dependant these types of cases are. For Rihanna, it was held, the mere sale by a trader of a t-shirt bearing an image of a famous person is not, without more, an act of passing off. However, the judges still ruled that the sale by Topshop of t-shirts bearing Rihanna’s image, without her approval was unlawful.
Interestingly, Rihanna relied on passing off, but there could be similar cases to this where a rights owner might want to rely on copyright. What might surprise people is that the copyright in the photograph that depicted Rihanna’s image that was used by Topshop, was owned by a photographer who had licensed Topshop to use it. That was not enough to save Topshop – whatever the position in relation to the copyright in the photograph, other rights came into play.
This case has sent shockwaves throughout, not just the retail industry, but anyone involved in branding and now everyone must think carefully before using third party images on products, irrespective of whether such images are freely available online or actively publicised by someone famous
Here at GHW we have a wealth of experience in dealing with matters such as this. If you require any legal advice in relation to an image rights issue or a contractual dispute stemming from the use of your image, do not hesitate to contact us today to speak to a member of our team who will be able to assist in this area.