March 25, 2017
Topshop had begun selling t-shirts bearing an image of Rihanna which was taken from a photograph of her during a video shoot. The photographer who had taken the image (and therefore held the copyright on it) had given a licence to Topshop to use the image. Rihanna herself however had not authorised use of the image and brought legal action against Topshop claiming that the use of her image on clothing was unauthorised.
In England and Wales there is no directly applicable law to protect so-called “image rights” and therefore any such claim must be brought within a traditional action such as for infringement of copyright or “passing off”. The law of passing off protects the goodwill in goods or services and prevents one person passing off his goods or services as those of another.
Rihanna brought her claim under the law of passing off, claiming that the goodwill in her business had been damaged because the use of her image on the t-shirts implied that she had endorsed it. Her claim was strengthened because she had previously had a formal relationship with Topshop and also the image used was similar to those used for her album, therefore implying that there was a formal endorsement.
The Court of Appeal ruled in favour of Rihanna and maintained the injunction against Topshop, thus preventing them from selling the t-shirts.
Whilst this is a landmark decision and seemingly sets a precedent for people in the public eye preventing unauthorised use of their image, this was a particularly unusual case in that Topshop and Rihanna had a previous commercial relationship and therefore the public may reasonably have inferred that the t-shirt had been authorised by her. Retailers may therefore be more cautious when considering whether to use a celebrity’s image on their merchandise. However, if there has been no prior commercial relationship it will probably be much more difficult for a “passing off” claim to be established.
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