MISREPRESENTATION is something to be guarded against, and not just in case a superstar objects, says Pamela Abbott
The judgment in a legal action raised by Rihanna and others against Topshop this summer opened by saying: “Topshop is a well-known fashion retailer. Rihanna is a famous pop star.”
The clashing of two such prominent parties is always of interest, but what made this case more notable was that it related to an area of law which is different in the UK to many other places in the world – and the fact that Rihanna has had success where many others have failed.
In May 2012, Topshop started selling a T-shirt with an image of Rihanna on it. The picture was taken during the shoot for her We Found Love music video and featured her sporting the same hairstyle and headscarf as she does on the cover of her album Talk That Talk from which the single We Found Love was taken.
The photograph was taken by an independent photographer, from whom Topshop had a licence to use the photograph. They did not have Rihanna’s permission.
If this had happened in many US states, the case would have been straightforward: there are laws in force which recognise personality rights. If those rights are infringed by using, for example, someone’s name, picture or voice for advertising or trade purposes without consent, they have the right to seek an injunction or sue for damages. Other countries, like Australia, offer similar protections.
However, in the UK individuals do not benefit from having protected image rights and there is no general right by a celebrity (or a mere mortal for that matter) to control how their image is reproduced.
Who can forget the mammoth battle between Catherine Zeta Jones, Michael Douglas, OK! and Hello! magazines over the publication of their wedding photographs? Ultimately, the couple obtained damages after OK! magazine published the photographs when Hello! had the exclusive – but that was not based on having a general right to their image or personality, but on the law of confidence.
So, why did Rihanna succeed here? She relied on the law of passing off and, in so doing, trod in the tyre-tracks of former Formula One racing car driver Eddie Irvine a decade earlier. Irvine received damages when Talksport radio station sent out a brochure featuring a photograph of him, altered to replace a mobile phone he was pictured speaking into with an image of a portable radio to which the words “Talk Radio” had been added.
To be successful, Rihanna had to show:
1. That she has a goodwill and reputation among the public;
2. That selling the T-shirt amounted to misrepresentation; that it had to be likely that the public would be tricked into buying the T-shirt because they thought she had authorised it; and
3. The misrepresentation caused damage to her goodwill.
There was no question that Rihanna has the goodwill and reputation, being a successful pop star all over the globe, known as a style icon and fashion inspiration to the younger female market and running a successful merchandising and endorsement machine. The court felt the key issue in this case was misrepresentation. Normally using an image of a celebrity on a T-shirt would not be enough for the public to think they had endorsed it and there would be no passing off.
Here, however, it was enough as:
1. Topshop has been linked with Rihanna in the past (running a competition with personal shopping with Rihanna as the prize);
2. Topshop is linked with celebrities generally – think Kate Moss’s three years of collections; and
3. with the image being similar to the album cover, Rihanna fans would have thought it had been authorised by her as part of the promotional campaign.
The court felt true Rihanna fans would have been deceived. The third tranche of the test was met as sales would have been lost by Rihanna’s merchandising business and it represented “a loss of control of her reputation in the fashion sphere”.
There are messages for both the business world and public to take away from this case. For consumers, if you only want to buy something officially endorsed by a celebrity, look for their trademark on the item in question; most celebrities will have intellectual property protections in place.
For suppliers, as was the case here, many sets of terms and conditions will provide for the retailer to be indemnified if the product they are supplied with infringes another’s legal rights – so make sure before you supply something that this is the case. It is important to keep this in mind for all business-to-business contracts, not just when dealing with images of high-profile individuals.
• Pamela Abbott is a solicitor with CCW Business Lawyers