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Published: Fri, 02 Feb 2018
Personality rights are rights available to a well known personality or celebrity to protect them from the unauthorised use of his or her name, image, signature or persona without permission or compensation. Personality right are mainly of two types: one being the right to publicity and the other the right to privacy. By right to publicity we mean the right to keep one’s image and likeness from being commercially exploited without permission or contractual compensation which is similar to the use of trademark. On the other hand right to privacy is the right to be left alone and not have one’s personality represented publicly without permission. It is a common practice for the image, name, and signature or simply put the personality of celebrity or a well known personality (which shall be used interchangeably in this work) to be used in association with a product(s) or service(s). Association of a well known personality with a product or service can take either of the following, merchandising and endorsement or promotional purposes. Personality Endorsement is a situation where a celebrity by word or action publicly approves a product(s) or service(s). Merchandising on the other hand is the use of the name, photograph or signature of a well known personality with a product or service. The use of the face of Princess Diana on a porcelain plate is a typical example of Personality Merchandising. Association of a well known personality to a product or service creates some sort of approval. Where such a well known personality is highly respected or loved there is a high tendency that the target group will be influenced towards patronising the product or service which at the end of the day means good business for the User or Licensee. In other words, the personality is merchandised It is therefore not surprising to see why a Company will be willing to pay millions of pounds or dollars just to get a celebrity associate themselves with their product or service though this is dependent on how society perceive or are attracted to such a personality. This leads to the question, who is a celebrity? A celebrity is person who “….by his
There are no sources in the current document.accomplishment, fame, or mode of living ….has become a ‘public personage’. He is….a celebrity-one who by his voluntary efforts has succeeded in placing himself in the public eye”. This leads to the question are there justifiable grounds for a distinct law for the protection of a celebrity?[ MacQueen e tal, 2008: pg 663-66]) “…which to an extent explains the UK Courts reluctance to embrace a fully fledged personality right, lies in the justifications, or absence of justification, for such protection…it does not thereby follow that the individual should be given an enforceable right in personality right ….Granting a personality right would add nothing more to the innovation/incentive/reward circle…who precisely has created the ‘celebrity’…the individual or the inevitable media…” Every individual is entitled to the Right of privacy (RIPA 2000, DPA 1988, HRA 1998) however it becomes confusing when a person deliberately or knowingly aware of the consequences puts his or herself out there under the public radar. Will there be any justification for a distinct law other than that available under the HRA1998 or internal Jurisdiction on privacy Law to protect such a person, in my opinion NO; If a non celebrity cannot be protected from the unauthorised publication of his or her photograph Arrington v New York Times would it be then Justifiable to protect the celebrity who the public made so? I leave that for you to be the Judge. The problem will however arise where such a personality had done not deliberate act to attract public attention, for example a medical doctor who finds a cure for the treatment of HIV Virus. In this light there should be a balance between freedom of the press and one’s right to privacy.
This work will attempt to analyse how and whether the Law protects well known Personalities from unauthorised exploitation. It will also look into key areas like personality merchandising, Image right, publicity right, Right to privacy, passing off, Trademark and a host of others which is key to understanding Personality Right itself. This work will also try to understand the situation worldwide and compare the laws and approach in different jurisdictions and possibly proffer solutions for a way forward. However, more emphasis will be made on the jurisdictions of the United States, France, United Kingdom, Australia and Germany.
A suitable definition for personality right would be that given in DLA Piper (Penford e tal, 2007)
“…the right of an individual to control the commercial exploitation of his or her name and image and the right to receive remuneration from that exploitation”
Personality Right is a common or casual reference to the proper term of art “Right of Publicity.” The Right of Publicity can be defined simply as the right of an individual to control the commercial use of his or her name, image, likeness or other unequivocal aspects of one’s identity. It is generally considered a property right as opposed to a personal right, and as such, the validity of the Right of Publicity can survive the death of the individual (to varying degrees depending on the jurisdiction). [Wikipedia, 2010]
The principal case of Henderson (1969) RPC 218 gives us some insight. In this case the plaintiffs who were ball room dancers sued the defendant under the law of passing off for wrongful publication of a photograph of them on the cover of a gramophone record (strictly for dancing Vol.1) without their prior consent. In ordering an injunction against the defendants, the High Court of New South Wales based its decision on the ground that the use of the photograph by the defendants would suggest that the plaintiffs in some way had some connection or are involved with the product.
What Is Personality Merchandising?
Personality Merchandising is an aspect of character merchandising which seeks to merchandise ‘real’ characters as opposed to fictional characters such as cartoon characters, or fictional characters played by real personalities, some of which include characters like batman, superman, spider man, harry potter. It is a situation which allows or gives licence to another to commercially exploit the character of a real person [Philip & Firth, 2001: pg 336: 22.4]. It is a concept which has developed out of property, trespass and intentional tort. Personality merchandising is an area which though problematic, it is expected that there will be future development in the law to tackle issues of this sort. [MacQueen et al 2008: pg 662: 16.2]. Personality merchandising is increasingly becoming one of the 21st century means of marketing products and services. It is the modern way of capturing potential customers who have some admiration for the personality who is being associated with the product or service. Personality merchandising is one of the most modern means of increasing the appeal of products or services to potential customers who have an affinity with that character or personality. In the 80’s Pepsi took advantage of the popularity and admiration for the late king of pop Michael Jackson by casting him in a number of their commercial. It has become common practice for the name, photograph, signature or just any form of endorsement of actors, sportsmen, famous personals to adorn the pages of magazines, televisions, bill boards etc promoting one product or service or the other. The use of celebrities for endorsement is not just restricted to commercial exploitation. Take for instance the US election of 2008 where it estimated that the endorsement of Oprah of Barack Obama was responsible for over 1,000,000 additional votes. It is without doubt that some celebrities have the Goodwill, popularity or public admiration to influence a number of individuals directly or indirectly on the decisions they make on what to wear, what to eat, what to use, How to think etc. Celebrities like David Beckham, Elton John, Cristiano Ronaldo Cheryl Cole, Tiger Woods, the list is endless have all been linked to one product or service endorsement or the other. It is estimated that the earnings of Tiger Woods in endorsements deals alone as at 2009, was $99,737,626 USD or David Beckham whose estimated earnings as at 2009 from endorsements and advertisements alone far exceeded his earnings from playing football. However the endorsement and association of a celebrity to a certain good or service is not without its consequences [Lauterbach, 2005]. Where a celebrity has his or her name, photograph or signature connected with a good or service it might prevent another from making use of the endorsement in question with a similar good or service [McQueen, 2008: pg 663 16.4]. Let’s take for instance if David Beckham has his name and photograph registered as a trademark in connection with a dairy product this might prevent any other marketer of dairy product from making use of the name and photograph with his dairy product. [MacQueen e tal, 2008; page 663 16.4]
In Jurisdiction where personality right exist the development of the law in most circumstances take either of the two dimensions or in some instances both. The first has to do with the development of actionable right to privacy (or a ‘dignitarian’ right) while the second development borders on economic right which allows for economic exploitation of a celebrity image or personality. These rights are in most cases set under the already existing laws of trademark, copyright, performer’s right, trade description legislation, defamation, and data protection provision. Looking at the progress of the court in protecting the rights of real personalities using registered trade mark law, the law on passing off and the law on personality right itself there has been little success recorded. However that is not to say there has been no positive outcome. Let’s take a review on some case laws.
In Anna- Farid Lyngstad & Ors v Anabas Products & Anor  FSR 62. A well known pop group, ABBA sued the defendants for producing and advertising T-shirts and badges bearing the names and photograph of the group. The claimants sought for an interlocutory relief basing their argument on passing off. However there was no prior trade by the claimants in product for which the defendant was being sued, at least not before the defendants had started their business in the United Kingdom. In rejecting the relief sought the court made a summary of the action available under passing off and relying on Common field of activity/risk of confusion, cited the Australian cases of Henderson/Radio Corp. Pty. Ltd  RPC 218 and Totalisator Agency Board/Turf News Pty. Ltd  RPC 598 in which there was no requirement of a common field of activity. In disagreeing with the approach in these two cases Oliver J. Cited the case of McCullouch v Lewis A. May Ltd where the court ruled that Commercial Protection Right was not available to a personality where a common field of activity did not exist. In his opinion on Common field of activity/risk of confusion was nothing but a shorthand term for the risk of confusion. In these lights the judge ruled that the passing off action could not succeed as a territorial concept mainly because the claimant had failed to prove misrepresentation and there had been no common field of activity. He concluded by saying the plaintiffs lacked Proprietary Right. This was the attitude toward Personality Right but one question remains to be answered had the court erred? Based on the Law and facts at the time the court had acted appropriately however the case of Eddie Irvine changed the face of law. In the case of Irvine & ors v TalkSport ltd  EWCA Civ. 423, Eddie Irvine a famous formula one driver sued TalkSport ltd (TSL) claiming damages in passing off. The defendant company had acquired the right to cover and broadcast the FIA Formula One Grand Prix World Championship known as ‘The Championship’. The defendant company in early 1999 embarked on a promotional campaign to support the change to sports coverage and to generate interest among potential advertisers. However the company on the front page had dispatched some brochures and under the heading ‘GRAND PRIX’ there was a photograph of formula one rider Eddie Irvine dressed in his Ferrari racing gear holding a radio which shows the logo of the station supposedly listening to the radio station. Although the company had the copyright to this photo there had been a manipulation of the photograph to give the impression that the said piece to the ear of the racer was a radio instead of the phone which was in the original photograph. Underneath this same photograph appeared the logo of the station with the word ‘…we’ve got it covered’. Eddie Irvine was however successful in his claim. The court held that Eddie Irvine had a property right in his goodwill which was subject to protection from unauthorised exploitation and false appropriation and in this case there was a false representation of endorsement by TalkSport. The judge was quick to point out the illogicality of the common field of activity arguing that Misrepresentation was possible even if no common field of activity existed between the parties. In this case the court showed that a celebrity with substantial goodwill had effective protection from unauthorised exploitation. This was the first successful case of passing off based on ‘false celebrity endorsement’. Note however that although this case marks a significant milestone in the recognition of personality right there was a deliberate attempt to restrict it to the narrower concept of endorsement. Notwithstanding, the significance of this case is that, it indicates a shift in the attitude of the Judiciary towards a wider recognition of an intangible personality right. See also the case of Holley v J S Fry and Sons, Limited  AC 333; (1931)1 ALL ER Rep 131 House of Lords. In this case the court had ruled that a claimant who was libelled was entitled to possible remedies against unauthorised Personality Merchandising especially where it was defamatory.
Personality right is an area of intellectual property that has gained most attention in the United State for protection of pop culture idols such as Elvis Presley. The situation is however different in the UK, see the case of Elvis Presley Trademark where the court ruled that a name of a well known personality cannot act as a trade mark. The US has a long standing in the protection of personality right dating back to the 18th Century. The Laws on personality right in the US are mostly states enactment as opposed to federal enactments and as such there are some divergences in the Laws. The development of personality right in the US can be traced to the popular article written by Warren and Brandeis advocating for the right to one’s privacy.(Warren and Brandeis, 1896At the on set there was an attempt to apply already existing laws to the commercial aspect of privacy however the decision of the court in the case of Healan Laboratories v Topps Chewing Gum in the 1950s prohibiting the use of the names and pictures of famous baseball players on cards that were marketed together with the chewing gum brought some solution to the uncertainty that existed at the time and indicated for better things to come. The reasoning of the court was that there had been no prior consent by the claimant and such it was an infringement o..f his right to privacy and publicity. This was the landmark case which put publicity right on a property law footing, distinct from the human right/privacy doctrine. The case of Zacchini v Scripps-Howard Broadcasting Corporation 433 U.S. 564(1977) affirmed the court’s decision in Healan Laboratories v Topps Chewing Gum on the right to publicity [Lauterbach, 2005]. For a claimant to succeed in a case of personality infringement there must be prove of ownership of this publicity right and an unauthorised use of this image by the respondent without prior permission and approval by the claimant in a way that leaves in no doubt who the figure in question is, and that this damages the commercial interest of the right owner.Carson v Here’s Johnny portable toilet incorporation is a good illustration of this right, where the court held that ‘Here Johnny’ as was used in the beginning of a television show can serve as indication of a celebrity and as such may not be used for portable toilets. Legislations have been enacted by a number of states in the US to protect the right of celebrities from the unauthorised exploitation of their names or likeness by the media or producers of goods and services reserving the exclusive right to licence to the personality in question for commercialisation. In the fore front in this protection are the states of California and New York. Celebrities with some success have sought to use such legislations or court rulings under ‘passing off’ to provide protection from media intrusion. One notable statue is the California state statue which boasts strong image rights mainly owing to its celebrity presence. Sections 3344(a),(b) protects unauthorised exploitation. Section 3344.1 extends this right to cover 70 years even after death. Looking at the provisions of the civil code there is a clear provision for the protection of these rights, based solely on property law principles. The section indicates that these rights could be waived, transferred, or inherited. The duration and procedure in which damages could be assessed in most situations is predictable living room for fewer complications. The Law ensures both at common law and statutes “the right of a person whose identity has commercial value- most often a celebrity- to control the commercial use of that identity.”- Waits v Frito-Lay, Inc., 978 F.2d 1093,1098 (9th Cir. 1992) (as amended). Although California is one of the most recognised states where the rights of celebrities are protected, New York is seen as the first state to recognise that a celebrity has the right to protect his or her personality from public intrusion or exploitation without their consent. The case of Robinson v Rochester Folding Box Company is a fundamental case in the development of Publicity Right in New York. In this case there had been a Misappropriation of Personality and the claimant had sought to receive compensation under common law. The court in refusing to grant that sought, pointed out that the Common Law did not protect Misappropriation of Personality and the theory on privacy by Warren and Brandeis was too elaborate and impracticable. It was the court suggestion for the need of a Legislation that informed the New York Civil Law. See the case of Healan Laboratories v Topp Chewing Gum (supra). In contrast, in the case of Nussenzgweig v DiCorcia (2005) NY Slip Op 50171 (U) a famous Jewish Orthodox had objected to the publication of his photograph arguing that it breached his right under the New York Civil Right Law and the First Amendment. Based on the facts the Manhattan Supreme court rejected the argument on both grounds. The court ruling in favour of the defendant argued that although there had been few sale of the photographs it still did not constituent ‘Commercial Purposes’ as enshrined in the Civil Right Law but rather was an expression of art which is exempted from the right to privacy Law. See also the case of Dustin Hoffman v Capital Cities/abc Incorporated and LA Magazine Inc where the United States Court of Appeals for the Ninth Circuit reversed the decision of the United States District Court for the Central District of California.
The courts in some countries have shown great reluctance in granting celebrities monopoly to their celebrity rights and have continuously refused to uphold anyone’s exclusive rights to merchandise their celebrity status. However in most situations the courts will only intervene when there is a possible infringement to the personality right of a celebrity to endorse or be associated with an endorsed product. One key issue which the courts look out for in deciding a personality right case is to determine whether a substantial section of the public will be under a mistaken believe that there exist a commercial relationship between the claimant (celebrity or well known personality) and the defendant (Passing Off). In the Pacific Dunlop case the Federal High Court of Australia in affirming a decision which upheld an action in passing off said the test was whether a significant section would be misled into believing that a commercial arrangement had been concluded between the defendant and the plaintiff under which the plaintiff agreed to the advertising. In this case the plaintiff had sued the defendant for a television commercial which was easily recognisable as a parody from the film ‘Crocodile Dundee’ written by the plaintiff. See also the case of Koala Dundee. Although Australia has no comprehensive legal protection for the right of celebrities, until now before the change to the Trade Mark Act of 1995 (CTH) which allows selected indicia of celebrity personality such as name, signature and likeness some protection celebrities relied on action under the law of passing off and Trade Practice Act of 1974 (CTH) to prevent the unauthorised use and exploitation of their personality. The Act of 1995 provides some protection where the Trademark of a celebrity has been registered. The Act also has some uniqueness, it provides for post mortem protection for celebrity personality.
In the United Kingdom the protection of the image and personality of individuals has been done with laxity. The law does not recognise Personality Right as a distinct right. See the case of Kay v Robertson & Anor where the judge had pointed out that “…in English Law there is no right to privacy,…there is no right of action for breach of a person’s privacy…”. See the following cases Wainwright & Anor v Home Office and Naomi Campbell v Mirror Group Newspapers where the Courts had reiterated that the English Courts do not recognise a separate tort of privacywhile there appears to be protections for certain aspect of one’s personality, be it under statues or common law, the protections seem inadequate.
The concept of personality right in the United Kingdom is in itself extrinsic to the judicial system. Although a public personality can explore other areas of intellectual property law and Tort law to prevent unauthorised use of his or her personality the law is still very reluctant to embrace the rationality behind personality right protection. The courts would rather grant damages than order an injunction. Douglas v Hello The problem however with the open option to protect one’s right is endless. Take for instance the law on Copyright, the law only protects the work of the individual and not the owner of the work. When we look at the protection under trademark the law makes the registration of images difficult. See the case of Tiger Woods where a case had been brought for unauthorised use of trademark. The court held both at first and second instance that there had been no infringement pointing out that as a general rule one cannot have a trademark in his or her image or likeness. The law in most situations will only allow for the registration of a particular image and not the whole image of the personality. An action in passing off will only succeed where there is a misrepresentation to the public and that misrepresentation was acted upon. Halliwell v Panini, the claimant had sought an injunction to prevent the defendants from unauthorised sale of stickers which bore pictures of the singing group Spice Girls. The court in refusing to grant an injunction argued that the lack of any form of disclaimer was not sufficient to create a misrepresentation of endorsement to influence public patronage. Decision like this makes one wonder on what basis do the courts base this argument. Being aware that celebrities get paid for doing what they do especially when the internet and media talks about this almost every day. Will it then be out of place for one to immediately assume that there had been some form of monetary compensation? I for one believe that any form of commercial association means big cash for a celebrity do I then fall under the ignorant majority or is the courts’ reluctance preventing it from thinking outside the box? This only remains to be seen. See also the case of Lyngstad v Anabas (supra).
Although the United Kingdom is yet to make a distinct law which tends towards protecting the personality or image right of an individual a personality will succeed in a case of infringement to personality right if he or she can prove the case under any of the other Intellectual Property Law. The cases of Eddie Irvine against TalkSport, Ian Botham against Diageo and the more recent case of David Bedford against Ofcam brings hope of some sort and in the words of McQueen (2008: pg 662) “….development might be expected in the near future….” although English Law does not recognise Personality Right, the Law allows for the registration as trade mark of the signature of a celebrity whether dead or alive. The law recognises signature as distinctive because it is handwritten and therefore can be registered. Marilyn Monroe has her signature registered in class 3 with various toiletries, likewise James Bryon Dean. McQueen (2008: pg 665). While the law recognises signature as a registered trade mark the law is very reluctant to grant registration of name this same privilege. See the following cases Linkin Park LLC’s Application and Sir Alex Ferguson’s case where the court refused to grant the registration of name as trademark. These cases indicate the courts unwillingness to grant registration of names as trademark for goods which are just “mere image carriers”. The use of the name or photograph of a celebrity on posters, stickers is just a mere description of the celebrity. It will only make an ass of the law if every celebrity was given the opportunity to have his or her names registered as trademark. “…Monopolies should not be so readily created” [MacQueen, 2008 pg 665 16.9]. The test for the registration of a name as trade mark is, the name must be distinctive and there must be indication of origin. The court refused to grant Trade Mark in the case of Elvis Presley Enterprises Inc v Sid Shaw Elvisly Yoursas the name was not distinctive enough. The registration of the name of Princess Diana as a trade mark was also rejected as not being distinctive.
The protection of personality right in Germany dates back to kaiserreich, 1907. The Artistic Authors Right Act as explained by Klink got unto the German Statutes book by an accident of history. This was based on the successful prevention by the court of the publication of the photos of the late Otto Von Bismarck by two journalists who had earlier taken pictures of the deceased. The court based their argument on trespass. The passing of the Act however helped in closing the gap in the law. Section 22 and 23 of the law on copyright known as ‘The Kunsturhebergesetz ‘protected individuals who had portrait of themselves. Giving them the right to decide what should be done with the portrait. This meant that this formal right prevented anyone from legally publishing the portrait or picture (the courts gave a wider interpretation to the word picture which includes one’s painting, one’s likeness on photo etc) of a personality without the authorisation of the author (owner). However the statute provides that for a successful legal action the claimant must proof that he or she is recognisable from the picture. It also provides for exceptions when the situation is in relation to contemporary historical events, the interest of the public, and public events. With the introduction of a new modern constitution in 1949, Germany prioritised the protection of basic rights recognising that human dignity was sacrosanct. The constitution also recognised the entitlement in the development of personality. See the German federal Supreme Court case of Catherina Valente where the court created an economic right in one’s personality which gave the individual the right to determine how this personality can be commercially exploited. Section 832 I BGB recognises personality right as ‘other rights’ specifically because Article 2 s 1 of the Basic Law protects these rights. Most of these rights are enforceable by injunction In the case of Herrenreiter / ‘Gentle Rider’ which was a case on the protection of severe infringement of personality right the Bundesgerichtshofs recognised personality right as a right under the category of ‘other rights’ protected by the law of tort. The Claimant, a horse rider had sought an injunction and compensation against a company who produced drugs claiming to help men with sexual difficulties from use of his photograph to promote the drug. Although the German tort law does not provide for non-pecuniary damages section 832 I BGB (civil code) protect ‘other rights’ one of which is personality right. The courts are however wary in the application of the civil code restricting it mainly to acute cases of infringement of personality right. In this case though the claim was of a non pecuniary nature the court granted the relieve sort mainly because the claimant had argued that the use of his name was detrimental to his person and he would not have granted licence if he had been approached. On this argument the Bundesgerichtshof granted relief on the basis of ‘physical suffering’ as provided in section 847 BGB. With this the ‘Herrenreiter doctrine’ was established, that infringement into personality right result in recoverable damage if a severe culpable intrusion had taken place. When the issue of damages is considered, the claimant must show that the personality right is capable of being commercialised. That it is made available for remuneration and that the holder of the right would indeed allow for its use. See section 253 of the German civil code which allows a claimant recover compensation where the damage pertains to material asset. However these damages are in most cases discouraging as the courts in most situation show great reluctance in awarding huge financial compensations. See the case of Paul Dahlke where the court awarded only 250 pounds for the use of his photograph for advertisement without prior consent. This is a far cry from what an individual whose personality right has been breached would want as compensation. Reaction like this from the court will only encourage the unauthorised exploitation of the personality right of individual knowing well that the consequence is a little fraction from the possible gain realisable from the use of such personality. Note however in the not to recent case of Caroline von Monaco there was an attempt to breach this gap by introducing exemplary damages. The Hamburg court of appeal had awarded Princess Caroline a whooping sum of 90,000 pounds for the publication of an exclusive interview she, in fact, had never given. See also the case of Marlene Dietrich where the daughter of a famous actress who was now deceased had tried to stop the unauthorised use of her mother’s name and likeness without license in association with automobiles, goods and general merchandise. The lower courts were only willing to grant injunction on the premise that human rights of one cannot be transferable or inherited by another, on this basis the court could not grant her damages because she did not possess these rights. On appeal, the Federal Supreme Court reversed the decision arguing that the economic ‘personality right’ of an individual consist of two parts the first being the control of one’s personality commercial use and the other deriving financial benefits from the commercial exploitation of one’s personality. The court argued that the relatives of a personality were entitled to this benefit as opposed to third parties and on that ground the court granted damages to the deceased daughter. The case of famous German footballer Oliver Kahn who had complained of the use of his name and image in a football computer game and marketing campaign by the company, Electronic Art is a reflection
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