A brand New Image? Should Personality Rights be
Consumer Protection Arguments
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Finally, some courts and writers argue for the right of publicity in terms of consumer protection.148 The most common version of this argument focuses on the need to protect consumers from deceptive trade practices, especially false representations of endorsement or sponsorship. On this view, the right of publicity, like the law of trademark, would promote the flow of useful information about goods and services to consumers and protect them from deception and related marketplace harms.149 According to Professor Treece, 150 the right of publicity, by affording celebrities a private cause of action for unauthorized advertising use of their names and likenesses, operates to protect consumers from being “misled about the willingness of a celebrity to associate himself with a product or service.”151 At a first glance this ‘Consumer Protection’ rationale appears to be manifestly worthwhile, combining protection of the celebrity's success with protection of the consumer. It also appears to reflect the traditional rationale for trade mark law and the tort of passing off.152 However, this rationale does not justify a new publicity right, rather, I believe it cautions an adherence to the traditional reluctance to expand rights in this area.153 Indeed, there are additional critical problems with the standard consumer deception arguments. For one, the right of publicity enables celebrities to prevent commercial uses of their personas that are not in any way misleading or fraudulent,154 and as Professor Shiffrin notes, the right of publicity gives a public figure power “to control the dissemination of truth for his or her own profit.”155 In any event, Madow contends that to the extent that the right of publicity does prevent consumer deception in advertising, it is largely redundant,156 as in circumstances presenting a realistic danger that consumers will be deceived or confused about a celebrity's endorsement of, or association with an advertised product or service, the celebrity can obtain appropriate relief under the Lanham Act, (or passing off in the UK). In other words, if the sole concern is that consumers not be deceived or confused about the willingness of a celebrity to endorse or associate himself with an advertised product or service, then legal mechanisms better tailored to that purpose already exist. Conclusions. As we have seen, there are a great many arguments and opinions surrounding personality rights. Many believe that there is no coherent approach to protection, and find the situation entirely confusing. That the debate is necessary is beyond doubt. With cases featuring celebrities, footballers, and international film stars beginning to pour into our courts, there is a distinct indication that we are dealing with a phenomenon that is only going to increase. Despite the traditional reluctance of the English courts to create a publicity right or anything like it, there is every reason to suspect (and perhaps fear) a change in this approach. Many believe that if we have a situation where some countries’ rights are stronger than others, forum shopping may be inevitable. The ‘personality rights proponents’ argue that it is desirable to consider the opportunity to harmonise the law in this area throughout the member states at EU level, in order to create a level playing field, and to offer legal certainty to both those who want to market their publicity and those who hire celebrities for those purposes. If nothing is done, it is certainly possible that we may witness another instance of ‘buck-passing’ between the courts and the government, comparable to the current debate surrounding the general law of privacy here in the UK. Nevertheless, as has been demonstrated, the affirmative case for publicity rights is at best an “uneasy one.” Individually and cumulatively, the standard justifications appear not to be nearly as compelling as is generally understood. Should we be discussing merely the allocation of celebrity wealth, the above contentions would not be all that worrying; however, far more is at stake than is commonly supposed. It is quite apparent that there are far greater issues to contend with than simply deciding on policy grounds, or according to a cost-benefit analysis, whether a personality right should be granted, or indeed whether a persona ought to be capable of being owned. Following in the wake of this explosion of the celebrity phenomenon is the commercial practice based on the assumption (or threat) that publicity rights already exist. Agents and lawyers are keen to expand the profitability of their clients into all possible areas by preventing unauthorised use.157 By claiming valuable assets that they will seek to protect against misappropriation, the industry is in effect preparing the ground for actual rights.158 International experience is likely to impact on the English reaction to the celebrity industry's concerns, given advertising is the subject of international distribution and is indeed borderless on the internet.159 It is against this background that recent developments in English law have to be assessed. These developments, particularly in the tort of passing off but also in the action for breach of confidence, will perhaps encourage continued pressure for the protection of “publicity rights” in English law. There is obviously work to be done on both sides of the fence, and at present a definitive argument for outright denial of the right of personality cannot be made on the current state of affairs.160 However, I feel that it must now fall to the proponents of publicity rights to explain why the risk is worth taking. Appeals to “McCarthian” “common sense” will surely not suffice here. As Lane notes: “We can be sure that the struggle to transform celebrity status into intellectual property will continue.”161 Bibliography
‘Personality Database’ a project of the AHRC Research Centre for Studies in Intellectual Property and Technology Law based in the School of Law at the University of Edinburgh.
Hughes ‘The Philosophy of Intellectual Property’, 340, n218. 1 R. Penfold, A. Batteson, J. Dickerson ‘How to defend image rights’ M.I.P. 2005, 148 Supp (Brand Management Focus 2005), 19-21. In the Estate of Elvis Presley v Russen (513 F Supp 1339 (1981), 1353); the court defined the ‘right of publicity’ as “…..the right of an individual, especially a public figure or a celebrity, to control the commercial value and exploitation of his name and picture or likeness and to prevent others from unfairly appropriating this value for their commercial benefit.” (per Brotman, District Judge). 2 Alan Burden-Cooper ‘Image Rights - Having your cake and eating it?’ June 2002. 3 Martino Giaquinto ‘Celebrity Branding’ (2004) IP & IT Law 9.5(3) 4 R. Penfold, A. Batteson, J. Dickerson ‘How to defend image right’s M.I.P. 2005, 148 Supp (Brand Management Focus 2005), 19-21. 5 Madow, ‘Private Ownership of Public Image: Popular Culture and Publicity Rights’, California LawReview, 1993, at 177. 6 Martino Giaquinto ‘Celebrity Branding’ (2004) IP & IT Law 9.5(3) 7 Jan Klink. ‘50 Years of Publicity Rights in The United States and the Never Ending Hassle With Intellectual Property and Personality Rights in Europe’ 2003 Intellectual Property Quarterly. 8 ibid. 9 and indeed the UK’s rather lacking guidelines on privacy law (please refer to Rohan Massey; KathrinTauber ‘Privacy And Personality, Politicians And Stars’ (2003) E-Law 1.2(5)). 10 Despite the recent extension by the UK courts of existing laws towards the creation of quasi-image rights, the UK is still some way from creating a self-standing image or personality right 11 Martino Giaquinto ‘Celebrity Branding’ (2004) IP & IT Law 9.5(3). 12 Amanda Maclachlan ‘WIPO2 - the domain name consultation process’ (2001) Vol 151 No 6981 p 596. 13 Here there was neither the cohesion, lawyering skill, nor lobbying muscle to counter this pressure for legal commodification effectively. – Madow, ‘Private Ownership of Public Image: Popular Culture and Publicity Rights’, CLR 1993, at 177. 14 Thorsten Lauterbach ‘US-style ‘personality’ right in the UK – en route from Strasbourg?’ (20th BILETA Conference). 15 Healan Laboratories, Inc. v Topps Chewing Gum, Inc. 202 F. 2d 866 (2d Cir. 1953) at p.868. 16 The situation under French law is quite similar to the German approach and discussed by Logeais and Schroeder ‘The French Right of Image: An Ambiguous Concept Protecting the Human Persona’ (1998) 18 Loy. L.A. Ent.L.J. 511. The Italian practice is analysed by Martucelli, ‘The Right of Publicity under Italian Civil Law’ (1998) 18 Loy. L.A. Ent.L.J. 543. 17 Simon Smith Image, Persona and the Law (Sweet & Maxwell 2001) 18 Thorsten Lauterbach ‘US-style ‘personality’ right in the UK – en route from Strasbourg?’ (20th BILETA Conference) 19 Jan Klink. ‘50 Years of Publicity Rights in The United States and the Never Ending Hassle With Intellectual Property and Personality Rights in Europe’ 2003 Intellectual Property Quarterly. at p.364 20 These rights have inherent difficulties: in order to succeed in a libel claim, a person must show that the offending publication has lowered his reputation in the mind of the public; trade mark registrations for images are difficult to secure and, even if registration is obtained, it may only protect a particular image used as a trade mark and not the general image of an individual; copyright will protect a photograph or drawing of an individual as an artistic work but not the image of the individual himself; and an action for passing off requires a misrepresentation that is acted on by the consumer. In other words, for such an action to be successful, the consumer needs to show that particular goods and services have been licensed or endorsed in some way by the individual seeking to protect his image, when this is not the case. 21 (1869) L.R. 2 430 PC. (Earlier cases were concerned with honour and reputation, see Lord Byron v Johnston (1816) 2. Mer. 29; Clarke v Freeman (1843) 12 Jur. 149; Routh v Webster (1847) 10 Beav. 561). 22 See for example Earl Cowley v Countess Cowley [1901] A.C. 450; Taverner Rutledge Ltd. v Trexapalm Ltd [1975] F.S.R. 479. 23 [1931] A.C. 333. 24 (1948) 65 R.P.C. 58, where the court made clear that false endorsement does not give rise to actionable claims. They thought it was a mandatory requirement for an action of passing off that the claimant and the defendant were engaged in the same field of activity. Only that way might the public be mislead about the origin of the goods in question. Public figures could thus be used in commercial advertisements quite freely. (In Irvine v Talksport [2002] EMLR 32, Laddie J. reversed this point. Taking into account decisions from Australia and New Zealand and analysing the law before McCulloch v May he found that the public can be misled if the likeness of a famous person is used to advertise a product without authorisation. It is necessary, however, that this person has built up sufficient goodwill and that the advertiser gives the impression that the person used really endorses the product. It would appear that ‘the man in the street’ can still be used for advertising purposes without a licence, at least as far as the action of passing off is concerned). 25 See for example Lyngstad v Annabas [1977] F.S.R. 62, which is still the law. In this case Oliver J. expressed the view that the public would not believe that a music group was responsible for all memorabilia bearing their name or image. This is especially so if the music group themselves are not in the business of selling memorabilia (T-Shirts, mugs and the like). An action of passing off was thus not relevant and merchandising of memorabilia does not require a licence in the UK. 26 The Whitford Committee considered integrating "character rights" for fictional characters into the Copyright Act but concluded that they would fit better within an unfair competition law, Cmnd. 6732 HMSO, 1976-77, para.909, see n.55. 27 [1999] R.P.C. 567. This case endorsed the view expressed in Lyngstad v Annabas. By saying that a trade mark of the name of a famous person would be descriptive rather than distinctive for memorabilia sold with the picture or name of that person on it, the Court of Appeal appeared to remove the possibility of registering a trade mark for a band in connection with those types of goods and services. 28 A middle-distance runner of the 1970s. 29 Bedford brought a complaint to the UK communications regulator, Ofcom, which found that the two runners featured in the campaign, each wearing the numbers "118", had caricatured Bedford without his permission. 30 R. Penfold, A. Batteson, J. Dickerson ‘How to defend image rights’ M.I.P. 2005, 148 Supp (Brand Management Focus 2005), 19-21. 31 Irvine v Talksport [2002] EMLR 32. 32 Please refer to David Rose and Emily Shaw Directory: law -> resources law -> Jurisdiction of the Courts law -> Luther V. Borden: a taney Court Mystery Solved law -> ‘Intellectual Property Rights in Sport’ law -> The law of tort introduction a. 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