The right of publicity is generally defined as the right of an individual to control the commercial exploitation of his or her name, likeness and persona, and the right to receive remuneration from that exploitation.1 Every day we are deluged by images of celebrities either promoting or endorsing almost every product imaginable, from food and drink all the way through to sportswear, electronics and even cosmetics.
Over the years, sports people and celebrities have become increasingly aware of the value of their image rights in a world where product endorsement is common and perceived to be lucrative.2 Many companies recognise the attractive force of the reputation of a celebrity as an encouragement to buy products or use services, and fully understand that celebrities can create awareness, focus attention and transfer images and glamour to products that otherwise might remain anonymous.In addition to an attractive packaging and a respected trade mark, the limelight of a celebrity adds substantial market value to a product.3
In the last decade or two, as this "celebrity industry" has grown in power, organization, and sophistication, the use of one’s image or personality for the marketing of goods and services has become more and more valuable and both advertisers and marketing departments alike have been quick to tap into this segment of the public's apparently ceaseless appetite for images of its idols.4 However, as the costs involved in celebrity production have soared, the pressure for legal commodification of personas has intensified.5 Many believe that the market value of 'popularity' is extremely vulnerable,6 as aside from the risk of unfavourable media coverage, free-riders often cash in and appropriate the celebrity's personality features in order to promote their goods and services: names, voices and likenesses are hi-jacked for advertisements, and look-alikes and caricatures replace celebrities who are reluctant to lend their image to certain products.7 The English courts, however, have always been sceptical about creating monopoly rights in nebulous concepts such as names, likenesses or popularity,8 and the notion is still very much alien within the UK. In the absence of personality or publicity rights,9 celebrities are thus forced to try and seek protection of the business value of their personality by other means,10 whether under copyright law, trade mark law, or by pushing the boundaries in the tort of passing-off.11 Evidently, the area of personality rights is fraught with difficulty and raises many questions.12 Other jurisdictions, notably the United States13 has had decades of experience with regard to a personality right,14 and it is here that I will be basing the substantive aspect of this article. Namely I will be attempting to disprove some of the common threads of argument that lay claim for a need of Personality Rights here in the UK.
Personality Rights in a National Context The Situation in the UK. "We think that, in addition to and independent of that right of privacy, a man has a right in the publicity value of his photograph ... For it is common knowledge that many prominent persons, far from having their feelings bruised through public exposure of their likeness, would feel sorely deprived if they no longer received money for authorising advertisements, popularising their countenances, displayed in newspapers, buses, trains and subways."15 These words of US Judge Jerome Frank in 1953 introduced a new and separate property right to protect the business value of popularity. Surprisingly however, major European jurisdictions seem to be able to ignore 50 years of economic and legal development in this area and remain astonishingly resistant to the needs of the holders of these valuable assets.16 As we have seen, the development of personality rights in the UK differs considerably from the majority of other countries. British judges have been particularly unsympathetic towards the introduction of a US-style law to protect celebrities' identity, and judgements in UK courts reveal deep-rooted opposition to such a move.17 It has even been said that in the United Kingdom, the personality and image of individuals has been ‘stunningly under-protected’,18 forcing stars and starlets to sneak through back doors of all kinds of legal provisions which were designed for other purposes.19 Without any freestanding right to publicity, individuals have had to rely on a framework of intellectual property and other rights to achieve some form of legal protection and prevent unauthorized exploitation of their names and images; including libel, trade marks, copyright and passing off to name but a few.20
As early as in du Boulay v du Boulay21 a court stated that the use of another's name is a grievance for which English law affords no redress. English law has never moved towards creating rights in a name per se, 22 and protection for other personality features such as likeness, voice, distinctive clothes, etc. or a more general right of publicity has constantly been rejected: first in 1931 in Tolley v Fry,23 then in 1948 in McCulloch v May,24 through various celebrity merchandising cases in the seventies,25 by the Whitford Committee26 in 1977, and more recently in 1999 in Elvis Presley Enterprises Inc. v Sid Shaw Elvisly Yours.27
It was expected that clarity may be afforded to English law in this area following the public offence taken by David Bedford,28 at the advertising campaign pursued by the directory enquiries operator 118 118 during its launch in 2004.29 But rather than act as a springboard to a civil claim, whether on advice or otherwise, Bedford took the matter no further, leaving those hoping for a development of the law in this area disappointed.30
Although often cited as heralding the arrival of image rights in the UK, the English High Court's decision in the Eddie Irvine31 case also changed little The Irvine decision has been hailed by some as a legal watershed and that personality rights are now protectable under the common law of passing off. It has been suggested however that such a view is not correct.32
Indeed, rather than a watershed, the Irvine decision is perhaps nothing more than the court applying the law of passing off to modern business practice, namely the ever-popular marketing conceit of celebrity product endorsement. As Laddie J stated in the Irvine action at first instance: "The sort of cases which come within the scope of a passing off action has not remained stationary over the years ... Passing off is closely connected to and dependent upon what is happening in the market place."33
In fact, both passing off and false endorsement are growing areas because we have no personality rights in this country. 34 English courts seem to like neither the celebrity nor the merchandising business,35 and despite calls from lawyers for the UK to adopt a U.S-style right to publicity, the British Judiciary is still resistant to the idea.36