In the UK there is no standalone right of personality by which a celebrity can protect their likeness.
The unauthorised use of a celebrity’s image has to be challenged under the regimes of passing off, trade mark infringement, data protection and breach of confidence or advertising regulations.
Passing off will only protect an individual’s name or image if it can be shown that these have been used in trade and attract goodwill. It will be necessary to distinguish between a celebrity’s notoriety and any brand a celebrity has created or the reputation that they hold. Once goodwill is established, it must then be shown that the use of the celebrity’s name or image gives rise to a false message that the celebrity has endorsed or is associated with the goods or products sold by the advertiser.
Trade mark infringement
It is increasingly common for celebrities to register their name or image as trade marks. For example, David Beckham’s name is registered as a Community trade mark for goods including perfumes, sunglasses, jewellery, posters and toys. However, trade marks can be difficult to enforce as the more famous the celebrity, the more likely that the use of the celebrity’s name or likeness will be deemed descriptive and so not to amount to trade mark use.
Photographs of a person constitute personal data as defined in the Data Protection Act. Use of images of a living celebrity may amount to processing of that personal data and so must be handled in accordance to data protection principles. Use of celebrity images without consent will only be permitted where it is done in the pursuit of legitimate interests e.g. the journalistic exception where publication is in the public interest. This exception is not available when a celebrity’s image is used for branding purposes.
Privacy and breach of confidence
There is no standalone law of privacy under English law, although confidence in personal matters may be protected under certain circumstances. English law must balance the rights of respect to a private life and the right to freedom of expression. Where an image is taken of a celebrity in an obviously private situation, such as on a family holiday (as was the case with HRH Duchess of Cambridge), the unauthorised use of that image is likely to be considered an intrusion into their private life.
The CAP (Committee of Advertising Practice) code provides that advertisers must obtain permission before referring to a celebrity in an advertisement or implying personal approval of the marketed goods. It should also be noted that the ASA’s (Advertising Standards Authority) remit has recently been extended to the online sphere, including social networking platforms, so brands should be careful when featuring celebrity images on sites such as Facebook and Twitter.
Myerson LLP are the premier commercial litigation solicitors in Cheshire and South Manchester. Our expert solicitors can advise on all aspects of commercial disputes and debt recovery.