Posted: July 1st, 2022

Celebrity Rights in the U.K

Celebrity Rights in the U.K

Law
Topic:
Critically assess the extent to which the UK’s passing off doctrine provides appropriate protection to celebrities whose image or likeness is used in a commercial context without their authorisation.
Need writing in UK English language
Reference in OSCOLA format
Please write it in academic way I need to pass it is my last chance
Write a critical thinking assess essay
The sources are up to you but i need academic references from google scholar.

Introduction
In the U.S., publicity rights are developed to give celebrities legal entitlements in terms of the commercial value that comes with their image or identity, thus allowing them to control or benefit from the commercial exploitations that come with their brand, image or identity. However, this development is not always the case with most common law jurisdictions globally since they don’t enjoy publicity rights. For instance, the law in the United Kingdom doesn’t recognize publicity rights or the distinct protection right for an individual’s image or identity from unauthorized use . This fact implies that the United Kingdom does not recognize personality rights. As such, it means that protection of celebrity image tends to be limited in scope with the United Kingdom especially given the fact that the passing off legislation only offers protection in cases where false endorsements have taken place1. Today there has been a growing trend in common law jurisdictions that seek to provide celebrities with protection by creating the tort of passing off to protect celebrities from the unauthorized image or identity use. By exploring various case laws and comparing it with other jurisdictions such as Australia, this discussion argues that the passing off doctrine in the United Kingdom doesn’t protect celebrity image and identity adequately.
Historical Background on Celebrity Imaging and Passing Off
Scone (2012) argues that since 1869, the United Kingdom copyright law has not provided any protection to an individual’s name. This fact clearly stated in the (Du Boulay v. Du Boulay) case where the Privy Council argued that the U.K. doesn’t recognize an individual’s absolute rights to a specific name regardless of the cause of annoyance . In a case that would be regarded as being more recent, the Elvis Presley Trademarks, Inc case of 1998, the court failed to grant the applicant trademark registrations bearing the name “Elvis Presley,” arguing that there is nothing similar to copyright in any given name . This ruling meant that even if Elvis was still alive today, he wouldn’t have the right to stop a fan or individual from naming their child or dog “Elvis Presley” or “Elvis” because it is already his name since birth. Additionally, the court ruled that individuals cannot obtain copyrights within their appearance, which means that celebrities cannot prevent their fans or any other individual from having a tattoo bearing his appearance simply because it has conveyed the celebrity’s appearance3.
The fact that there are no personality rights within the U.K. means that celebrities have to rely on other legislations that offer protective rights. The primary protection method tends to be based on the intellectual property law that includes the trademark and copyright law, with a close relation to the tort of passing off1. Additionally, other techniques that can be used to offer protection to celebrity rights include those claims that are primarily based on violations, defamation and confidence breach emanating from contract law1.
Both the judiciary and the legislature within the U.K. have supported the creation of publicity rights, but the public has continuously opposed this idea. The main concerns regarding this resistance are the fact that by recognizing publicity rights, it would establish limitations that would prevent newspapers and other media outlets from bringing stories on specific individuals or celebrities to the public1. As such, it implies that the public tends to be suspicious that such rights restrict the media from the freedom of expression while exposing the media to floods of litigations.
Celebrities can derive relief from intellectual property rights through three main mechanisms of the Copyright, Designs and Patents Act (1988), the Trade Marks Act as well as the common law’s passing off1. The Copyright, Designs and Patents Act (1988) doesn’t provide celebrities with relief when they haven’t secured or are unable to secure copyright protection for these celebrities’ artistic works or talents1. Under such circumstances, a plaintiff should be able to establish British ownership or citizenship for the work allegedly produced or infringed upon within the United Kingdom to pursue any copyright infringement claim. In situations where artistic talents fail to fit within copyrightable work confines, celebrities cannot be accorded any protection.
It would also be unlikely for the Trade Mark Act to grant celebrities with any protection within the U.K. since it only offers protection of designs, names, or the symbols that can distinguish trademark owner’s property or goods from those of a competitor1. Although celebrities have often attempted to trademark their symbols or names associated with their brands, the courts have always been very reluctant to provide protection specialty in situations where the likelihood of confusing the source of goods promoted is quite high.
The U.K. recently recognized passing off action for getting celebrities relief, especially in situations where their image or reputation has been exploited concerning specific goods or services that they didn’t endorse personally. In the case (Irving v. Talksport Ltd), the plaintiff was granted a passing off relief based on the unauthorized appropriation of Irving’s reputation or goodwill. In this case, the court recognized that celebrities aim to exploit their image and personality commercially . As such, celebrities have the right to recover in situations where another individual tries to depict their endorsement of specific services or goods falsely. Although the passing off legislation has huge potential to provide celebrities with relief, it tends to be very minute when compared to the damage incurred.
The Human Rights Act of (1998) doesn’t offer any protection against the commercial appropriation of the celebrity’s attributes . According to article eight of this Act, individuals enjoy privacy rights that cannot be limited by the public authorities unless in situations where public safety and national security are a concern5. Through privacy rights claims, many celebrities have succeeded in indirectly claiming commercial misappropriation. For instance, in the case (Douglas v. Hello! Ltd), the court had to balance between the privacy interests of the celebrity as outlined in article eight of the Human Rights Act and the freedom of expression given to the press as outline in the article ten of the same Act . According to the court’s decision, when elements that under ordinary circumstances were just private, became commercial, the defendant, who in this case was Hello! Ltd’s actions were criminal, which made them liable for confidence breach6.

Celebrity Imaging and Passing Off
According to Wadlow (2016), Passing off within the U.K. is usually a strict liability tort under common law . The primary purpose of having passing off in place is to protect the goodwill in any business, and this is achieved by preventing the misrepresentation as established in the case (Reckitt v Coleman) . The prevailing principles outlined in this case establish that no man should pass their goods compared to those of another individual. Additionally, the decision established that successful passing off involves the claimant complying with classic trinity as established in this case8. In other words, the claimant has the responsibility to prove goodwill as attached to his goods and services. Moreover, the defendant is misrepresented to the public, which is likely to result in damages from such actions.
The identity and image of a celebrity are allowed to generate this goodwill that is the benefit of a good reputation or business connections. Under such circumstances, it makes it very difficult for celebrities to safeguard their goodwill against malicious or false endorsements, which represents a form of misrepresentation. This implies that celebrities are not able to prevent the malicious or wrongful use of their identity when promoting specific products that the celebrity has no association with. The World Intellectual Property Organization under the Character Merchandising Report established that personality merchandising arises when the image or name of a celebrity is used as an advertisement tool for a gen product and in particular where a celebrity endorses the product1. However, in practice, the courts within the U.K. still have very limited protection against such traders that appropriate an individual’s personality by undertaking personality merchandising.
Passing off only offers protection to an individual’s image or name after it is established that they attract goodwill or has been used on specific trades. Although celebrities tend to be well known their natures, their fame should be distinguished based on the legal requirement associated with their goodwill. In the case (Irvine v Talksport), the court established that sportsmen such as the racing driver are usually well-known figures to quite a large proportion of the public, especially in their particular field of sport through merchandising, private sponsorships and endorsement deals4. As such, in this case, Irvine had sufficient goodwill to his name that supported a claim of passing off. From this case, we can establish that once goodwill has been found to exist, the use of a celebrity’s image and the name has to be proven that it led to false messages endorsed by the celebrity or associated with the goods and services that an advertiser had decided to sell.
In situations where companies use celebrity images for branding without seeking permission, there exist no definitive rules defining what amounts to misrepresentation. The assessment of the court is mainly based on individual facts of a particular case, and the context with which the image or name of the celebrity has been used. For instance, editorial use of the celebrity’s image or name is unlikely to result in false endorsement impressions, and the risk of misrepresentation tends to be very low5. However, in contrast, using a celebrity’s image o name on a given web page together with commercial branding can create the false impression that the celebrity has recommended the brand or goods offered on the specific page. As established in the Irvine case, misrepresentation risks tend to be higher in situations where a celebrity has been established to have licensed his willingness to endorse or promote a specific branded good, especially in situations where such licensees have been made exclusive4. Under such circumstances, it may involve the use of deceased celebrity names where their brand trades by licensing their image to a third party brand.
Finally, under the passing off doctrine, a claimant has to establish that their goodwill and reputation is likely to suffer due to such misrepresentation7. However, this is also dependent on individual facts. In situations where celebrities build their estate or business by licensing their image or name to a third party brand, it is highly likely that such goodwill within a business is likely to result in damages arising from unauthorized use, thus creating a false impression about a specific endorsement.
Celebrity Imaging and Passing off Case Law
The U.K. courts have been very reluctant to undertake extensions on personality merchandising, especially beyond an endorsement. For example, in the case (Lyngstrad v Annabas Products), the court based its decision on the belief that there would be no reasonable assumption that Annabas Products had approved for paraphernalia that contained their images, thus rejecting the passing off claim . The decision was undertaken on the presumption that it merchandising would less likely be misleading when compared to endorsements. The same view was undertaken by Elvis Presley Trademarks (1999) ruling, where the court established that the trader’s response was only to demand consumer confusion within a very narrow sense3. According to the judgment made in the (Mirage Studios v Counter Feat Clothing), it was based on the establishment of a general rule where the public automatically assumes that the trade connection between merchandise bearing the likeness or name would result in the creation of new character rights . The court, however, rejected that such rights existed while failing to believe that celebrities should not have such monopolies. As such, it is quite evident that there is flexibility by the courts towards celebrity merchandising.
The fact that courts within the U.K. have adopted a restrictive approach means that it has led to celebrities within the U.K. being unable to have control of the sale of their image to the public, thus limiting the scope of protection that their celebrity image deserves. Based on the Intellectual Property Law agreement, passing off implies that the image of a celebrity is not protected in situations where traders have the allowance to make an appropriation of their fame to realizing specific profits without any costs.
The U.K. courts have, however, allowed some cases for passing off. For example, the ability to apply passing off when it comes to merchandising is demonstrated in the case ( Fenty v Arcadia) where the pop star artist Rihanna managed to successfully managed to raise a passing off claim against Topshop, a company that had sold T-shirts with her image yet she hadn’t given her approval about it9. This case represented the first instance within the U.K., where a celebrity had managed to successfully raise passing off claim aimed at preventing unauthorized utilization of their images on third party merchandise without their approval.
However, although Rihanna was successful in this case, the high court made an emphasis that every case should be considered based on its facts and merits and that selling merchandise bearing the image of a particular celebrity doesn’t necessarily mean that it will amount to passing off. Among the key factor that led to the court arriving at this decision was the fact that the image that was used had close associations with the latest and much-publicized album of Rihanna9. Moreover, Topshop is a retailer whose primary business was dealing with celebrity collaborations with Rihanna has been one of the celebrities they had previous links with. The court also noted that Rihanna had also established his name as an icon in the fashion industry, where she had entered numerous collaborations with other players in the industry that used her branding on their products9. Finally, the court also established that Rihanna had already taken legal action on a previous occasion seeking to prevent any unauthorized use on her image. However, the existence of unauthorized merchandise that was already on sale would not have been enough for the consumers to conclude that any of Rihanna’s images appearing on the garment was unauthorized. The court was able to establish that a large number of customers might have thought that any T-shirt bearing Rihanna’s image was associated with her9. Although this decision appeared to be quite expansive in regards to the passing off doctrine touching on personality merchandise, the court’s decision was mainly based on the fact that Rihanna had previous trade associations with the retailer.
Additionally, in the Irvine v Talksport case, the decision made by the court is a demonstration that British courts are increasingly becoming sympathetic to unauthorized personality image use, especially in situations where it wrongfully implied endorsement4. However, an endorsement remains a narrow notion compared to simple merchandising of the trader’s products. Moreover, a claimant also has to endure the challenge of goodwill with a huge chunk of the market having been deceived to have successful claims.
According to scholar David Tan, there is enough protection for celebrity identity or imaging through passing off legislation, and he thinks that the U.K. approach to this doctrine is a success when it comes to enforcing a celebrity’s interest based on the unauthorized commercial exploitation . Based on the Irvine case, it is quite evident that the British Courts have established mechanisms that support celebrity image rights that are enforced under false endorsements. This type of passing off doctrine remains limited only to endorsements, which implies that it’s arguable that its associative identity value is not yet fully protected by Courts within the U.K. because of this narrow interpretation scope.
Finally, the passing off doctrine in the U.K. only offers protection to an individual’s image or name after it is established that they attract goodwill or has been used on specific trades. Celebrities tend to be well known their natures, but their fame should be distinguished based on the legal requirement associated with their goodwill. For example, in the case (Irvine v Talksport), the court established that sportsmen such as the racing driver are usually well-known figures to quite a large proportion of the public, especially in their particular field of sport through merchandising, private sponsorships and endorsement deals4. As such, in this case, Irvine had sufficient goodwill to his name that supported a claim of passing off. From this case, we can establish that once goodwill has been found to exist, the use of a celebrity’s image and the name has to be proven that it led to false messages endorsed by the celebrity or associated with the goods and services that an advertiser had decided to sell.
Although the passing off doctrine exists, these case laws have demonstrated that most celebrities may still struggle to develop the necessary crucial misrepresentation element. Additionally, passing off may fail to protect the celebrities who have not managed to license their names, images, or endorsements since the likelihood of damage would be very low. Moreover, passing off is unlikely to help a celebrity’s estate, especially in situations where they are deceased for a long period or in situations where a long period has already passed since the last endorsement was undertaken.
Comparing Passing off Doctrine in the U.K. with other Jurisdictions
To establish the adequacy or extent of protection that the passing off doctrine grafts celebrities in the U.K., there is a need to make comparisons with other jurisdictions such as Australia that are also utilizing the common tort law of passing off. Australia has taken a more flexible approach to personality merchandising when it comes to the passing of doctrine, and this comparison makes the inadequacy within the U.K. law more apparent. For instance, the (Henderson v Radio Corporation) case supports this argument since it allows for passing off doctrine where the image of a ballroom dancer to recording albums without any permission . According to the Australian Court, this violation led to consumer confusion because customers believed that Henderson was an affiliate of the band. Besides, the judges in this case also established that using the unauthorized commercial valuable reputation of the ballroom dancers was illegal and justified the intervention of the court9.
The decision taken in the (Henderson v Radio Corporation) in Australia is a direct contrast of the decision taken in the U.K. with the (Lyngstrad v Annabas Products) case where the unauthorized use of Annabas Products reputation was not considered enough to be put under the passing off doctrine . This comparison demonstrates that the extent of the passing off doctrine in Australia is more adequate compared to that in the U.K. This outcome exists because the passing off doctrine in Australia allows for more personality merchandising cases under the passing of doctrine. At the same time, in the U.K., the courts declined to consider this approach10. From this comparison, we can establish that the identity and image of a celebrity are not protected under the passing off doctrine in the U.K. which excludes celebrities from compensation for the potential damages that arise from their goodwill or loss that might be incurred from royalty endorsement deals since some traders only ride on celebrity market influence or fame for free.
As earlier discussed, the fact that there are no personality rights within the U.K. means that celebrities have to rely on other legislations that offer protective rights. The primary protection method tends to be based on the intellectual property law that includes the trademark and copyright law, with a close relation to the tort of passing off7. Additionally, other techniques that can be used to offer protection to celebrity rights include those claims that are primarily based on violations, defamation and confidence breach emanating from the contract law. Both the judiciary and the legislature within the U.K. have supported the creation of publicity rights, but the public has continuously opposed this idea continuously7. The main concern regarding this resistance is the fact that by recognizing publicity rights, it would establish limitations that would prevent newspapers and other media outlets from bringing stories on specific individuals or celebrities to the public. As such, it implies that the public tends to be suspicious that such rights restrict the media from the freedom of expression while exposing the media to floods of litigations. In other words, the public has also contributed to making the passing of doctrine being inadequate compared to other jurisdictions such as Australia.
Conclusion
From the preceding, the evidence is clear that although the courts within the U.K. have enhanced the protection given to celebrity identity and image in false endorsement cases, the courts have confined the protection of these situations only. Any divergence to this approach is explicitly limited only to the court’s face. Under the passing off doctrine, a claimant has to establish that their goodwill and reputation is likely to suffer due to such misrepresentation. However, this is also dependent on individual facts. In situations where celebrities build their estate or business by licensing their image or name to a third party brand, it is highly likely that such goodwill within the business is likely to result in damages arising from unauthorized use, thus creating a false impression about a specific endorsement. The case laws highlighted in this discussion also demonstrate that the U.K. courts have failed to expand on the passing off doctrine, especially regarding personality merchandising and retention of the rigid position.
The fact that courts within the U.K. have adopted a restrictive approach means that it has led to celebrities being unable to have control of the sale of their image to the public, thus limiting the scope of protection that their celebrity image deserves. Based on the Intellectual Property Law agreement, passing off implies that the image of a celebrity is not protected in situations where traders have the allowance to make the appropriation of their fame to realizing specific profits without any costs. This approach has often led to celebrities seeking other protection means key, among them, being a confidence breach that is in itself limited to specific situations. Comparing the passing off doctrine IN THE UK and other jurisdictions demonstrate that the extent of the passing off doctrine in Australia is more adequate compared to that in the U.K. This outcome exists because the passing off doctrine in Australia allows for more personality merchandising cases under the passing of doctrine. At the same time, in the U.K., the courts declined to consider this approach. As such, we can conclude that the passing off doctrine in the United Kingdom doesn’t protect celebrity image and identity adequately

Bibliography
Cases
Casemine.com, 2020. Edmund Irvine Tidswell Ltd. V Talksport Ltd. | [2002] WLR 2355 | England And Wales High Court (Chancery Division) | Judgment | Law | Casemine. [online] Casemine.com. Available at: [Accessed 22 July 2020].
CMS, 2020. Brands: Merchandising And The Elvis Presley Case.. [online] Cms-lawnow.com. Available at: [Accessed 22 July 2020].
CMS, 2020. Douglas V Hello! Ltd. [online] Cms-lawnow.com. Available at: [Accessed 22 July 2020].
Macquarie University, 2020. Duboulay V. Duboulay, 1866 – Macquarie Law School. [online] Law.mq.edu.au. Available at: [Accessed 22 July 2020].
Reckitt v Coleman, 2020. Reckitt And Colman Products Ltd V Borden Inc & Ors | [1990] UKHL 12 | United Kingdom House Of Lords | Judgment | Law | Casemine. [online] Casemine.com. Available at: [Accessed 22 July 2020].
Justia, 2020. Henderson Broadcasting Corp. V. Houston Sports Ass’n, 647 F. Supp. 292 (S.D. Tex. 1986). [online] Justia Law. Available at: [Accessed 22 July 2020].
Fenty and others v Arcadia Group Brands Ltd (t/a Topshop) and another [2013] EWHC 2310 (Ch),
Mirage Studios v Counter-feat Clothing Co Ltd [1991] FSR 145 (Ch) (Ninja Turtles case).
Books
Adams, J., Hickey, J., Tritton, G. and Adams, J., 2007. Merchandising Intellectual Property. Haywards Heath: Tottel.
Elmslie, M. and Lewis, M., 2016. Passing Off And Image Marketing In The UK.
Wadlow, C., 2016. The Law Of Passing-Off. London: Sweet & Maxwell.
Journals
Scone, J., 2012. From Common Law to Civil Law, the United Kingdom’s Change in Privacy Rights: Comparing Workplace Privacy Rights in Germany, the United States, and the United Kingdom. SSRN Electronic Journal.

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