Retailers may be surprised to hear that in the UK there is no such thing as a ‘general right’ by celebrities’ to control the reproduction of their image for commercial purposes.
However, this does not necessarily mean it’s a free-for-all, as Topshop found out earlier this year when pop star Rihanna successfully sued the high street fashion brand for selling t-shirts emblazoned with her image.
What’s legitimate use?
The legitimate use of a celebrity image on clothing and accessories comes down to the issue of false endorsement. The relevant test is whether the use of the image will make customers think that the item has been officially endorsed or licensed by the celebrity. With many celebrities well known for lending their name or image to products, could the public be inclined to believe that this is simply their latest endorsement and not unofficial merchandise? If they do, this could be false endorsement.
In the case of Topshop, the Judge made it clear that the selling of t-shirts bearing the face of Rihanna would not amount to false endorsement unless there were additional factors to consider. And there were two factors that proved important in the case, which tipped the balance, these were:
- Rihanna had previously officially collaborated in a high profile campaign with Topshop; and
- That the photo used by Topshop was very similar to a photo used in official Rihanna marketing such as CD sleeves.
And, then there’s copyright
Once retailers have jumped the false endorsement huddle, they need to think about getting copyright permission.
Even if there are no issues with false endorsement, copyright permission must be separately obtained from the owner of the image. This is usually the photographer, artist, publisher or a photographic library/agency. Images obtained online still need to be copyright cleared even where there appear to be dozens of similar images available. It is also worth highlighting that obtaining copyright clearance can be more problematic with iconic historical figures, where there are fewer images available.
The Rihanna case demonstrates that retailers can still use images of celebrities with discretion. However the industry needs to be careful not to cross the line and suggest to customers that clothing items and accessories are officially endorsed by the celebrity (when they are not). A learning point from the Rihanna case is that a suggestion can arise from the way a business has previously worked with other celebrities.
Retailers should be aware that the rules over use of individual images for commercial purposes are stricter in countries outside the UK. For example, in the US where famous people are given control of the use of their image for commercial purposes.