Image battle: celebrities on T-shirts

To celebrate the launch of our United Kingdom Copyright database, we dedicate this post to a comparison between a UK and a USA lawsuit:

In 2011, Topshop sold a £22 sleeveless T-shirt bearing a recognizable photograph of Rihanna. The photo was taken from her during a video shoot for her Talk That Talk album.

The owner of the copyright in the picture (an independent photographer) licensed the use of the image to Topshop, but no permission from RiRi nor from any company deriving rights from her was obtained.

It is common in the music business to sell merchandising, especially products including images of a star. Over the years, Rihanna has endorsement agreements with Clinique, Gillette, LG Mobile and Nike. She collaborated on fashion campaigns with Dior and Puma.

The singer and two of her corporate licensing companies launched legal action claiming that this use of her image for fashion clothing was not licensed.

The claimants sued the fashion chain for passing off and trademark infringement. The trademark claim was settled. The essential question in the claimants’ claim in passing off is whether, by the use of the image on the T-shirt, purchasers would be deceived into believing that the T-shirt is authorized by the claimant.

The High Court followed the popstar’s allegations and granted an injunction prohibiting Topshop from selling the clothes without informing purchasers that the use of the image had not been approved by the artist.

In the UK, the courts have repeatedly refused to recognize personality rights: a celebrity seeking to control the use or reproduction of his or her image must rely upon alternative routes and causes of action like breach of contract, infringement of CR or – as in this case – the English common law right of passing off.

Rihanna was involved in another high-profile complaint about misuse of her likeness, this time in the USA.

Backpacks, hats and T-shirts consisting of her image along with the images of Beyoncé, Pharrell Williams, Kanye West and Jay Z were used by French fashion retailer Eleven Paris without permission or consent. The lawsuit was based on unfair competition and dilution grounds and trademark infringement. Copyright was invoked for lyrics from songs of Beyoncé and Rihanna used on the back of the T-shirts.

The USA protects right of personality for over 50 years under the Right of Publicity. Such personality rights allow for protection and commercial exploitation of the name, the likeliness and voice of a natural person. The case has been settled outside of court.

In civil law tradition, for instance France, Germany and the Netherlands grant celebrities a more elaborated legal protection derived from the constitutional protection of human rights.

To find other examples on this subject matter, use our specific point of law in the Copyright search tools: ‘Interaction between Copyright and Fundamental Rights’.

Referenced cases available in our Copyright Database:

Rihanna v. Topshop: Darts-IP reference: uk-2015-ewca-civ-3_20150122

Beyoncé, Rihanna, Kanye West, Pharrell Williams, Jay Z v. Eleven Paris: Darts-IP reference: S.D.N.Y._1-15-cv-07890_1