"Image rights” are rights in someone’s personality, such as the individual’s name, likeness or other personal features e.g. signatures, nicknames or their physical and/or style characteristics. Any individual, subject to satisfying certain tests, may exercise these rights to prevent the unauthorised use of any aspect of their image.
At present, in the absence of any coherent privacy legislation, the laws which are used in this country to protect image rights are a mixed bag of statutory provisions and common law authorities. As such, lawyers have to be imaginative and use the existing framework to try and prevent the unauthorised use of an individual’s image. This may, for example, involve the law of passing off and copyright, data protection legislation and applying advertising standards codes.
For an individual to protect his or her image rights by way of passing off, one of the key tests is that he or she must have significant reputation and/or goodwill associated with those rights. This favours ‘celebrities’, but not the less well known. In fact, in practice, there is a clear distinction between (i) ‘ordinary’ people who might object to an infringement of their image rights because it invades their privacy and (ii) ‘celebrities’ who don’t seek privacy at all but, in fact, whose image is a commercial asset which (like any other) needs to be protected in order to enhance their brand.
In a ‘commercial’ context, for example, another important test is whether the use of the individual’s image by a third party, without consent, would give rise to a false message suggesting (on the balance of probabilities), to a significant part of the market in which the image is being used, that the use of the image has been endorsed/approved by the relevant individual.
The law of image rights is developing, not only due to the growth of ‘celebrity’ culture, but also as people become more willing to try and protect their privacy (and other personal rights) through legal action. We recently advised a client on protecting his image, using a number of different authorities and arguments to successfully show that his image rights were being used without consent and that, in order to protect his interests, the unauthorised use should be stopped.