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Image rights: Protecting your personal brand

Image rights: Protecting your personal brand

Image rights: Why you should protect and monetize your personal brand

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We live in an age where image rules and perception are paramount, and media saturated celebrities are anxious to project their persona, in order to maintain their celebrity status, popularity, and marketability.

Image rights are of huge financial value to individuals who continuously inhabit the media spotlight, and are lucratively used by sportspersons, singers, actors, celebrities, and politicians. Nonetheless, few professions understand the financial value of exploiting these rights. In this post, we will offer a brief explanation of what images rights are, and how to exploit, protect, and benefit from utilizing them.

What are Image Rights?

‘Image Rights’ are the proprietary rights that an individual has in his or her image, and also other unique characteristics associated with their personality (such as their signature).

These rights are known in different jurisdictions by various names including ‘rights of privacy’ (UK), ‘rights of publicity’ (USA) and ‘rights of personality’ (Continental Europe). For the purpose of this discussion, they will be referred to collectively as ‘image rights’, applying the term ‘image’ not in its narrowest sense of ‘likeness’, but in its wider sense of ‘persona’, or a fortiori, ‘brand’ to use a marketing term. The main objective of this segment will be to determine the extent to which human beings are able to exert their legal rights to control the commercial use of their identity.

A typical ‘grant of rights’ clause in an image licensing agreement defines image rights in rather broad terms as follows:

‘‘Access to the services of the personality for the purpose of filming, television (both live and recorded), broadcasting (both live and recorded), audio recording; motion pictures, video and electronic pictures (including but not limited to the production of computer- generated images; still photographs; personal appearances; product endorsement and advertising in all media; as well as the right to use the personality’s name, likeness, autograph, story and accomplishments (including copyright and other intellectual property rights), for promotional or commercial purposes including, but without limitation, the personality’s actual or simulated likeness, voice, photograph, performances, personal characteristics and other personal identification.”

Protecting Sports Image Rights

The UK

The situation in Europe varies from country to country. Generally speaking, image rights are legally better protected in Continental Europe. In the UK, it is difficult to enforce these rights as there is no specific law protecting image rights per se. A personality can only take legal action ‘‘if the reproduction or use of [his/her] likeness results in the  infringement  of  some  recognised  legal  right  which  he/she  does  own.”

Famous persons, therefore, must rely on various laws, such as Trade Mark Law, Copyright Law and the Common Law doctrine of ‘Passing Off’ and/or vague notions of breach of commercial confidentiality. A prime example of this is F1 racing driver Eddie Irvine’s successful lawsuit against ‘Talk Radio’ under ‘Passing Off’ for using a doctored photograph of him holding and apparently listening to a radio (in the original photograph he was holding a mobile phone!) around the time of the British Grand Prix, to make it appear as if he were promoting or endorsing the radio station. Irvine was compensated £25,000 in damages for this breach after appealing against a previous award of £2,000 made by the trial judge.  Notorious exactly a mega sum! Despite these cases, most commentators consider they were decided on their own particular facts and circumstances and do not herald the establishment of privacy and personality rights in the UK.

To avoid image rights infringement, a number of personalities have registered their names and likenesses as trademarks under the UK Trade Marks Act 1994. Celebrities including Jamie Oliver, Catherine Zeta-Jones and David Beckham have applied to register their names as trademarks. Other personalities have taken other measures to protect their images. British athlete, David Bedford, a former 10,000 m world record holder, recently won a ruling against a phone directory company, ‘The Number’, over its advertisement of its service (‘118-118′) featuring two runners in 1970s running kit. The UK Communications Regulator ‘OfCom’ held that ‘The Number’ had caricatured Bedford’s image—drooping moustache, shoulder-length hair and running kit—without his consent, contrary to rule 6.5 of the UK Advertising Standards Code.

 

Continental Europe

However, in Continental Europe, a legal right of personality, often combined with a right to protection of one’s private and family life and honour, and expressly safeguarded under the Constitution of the country concerned, generally exists. The existence of these laws makes it easier to protect and enforce image rights, considered to be an inherent and fundamental right of every human being necessary to control the commercial use of their identity.

In Germany, articles 1 and 2 of the Constitution protect image rights. Oliver Khan, the former German International sued Electronic Arts, the electronic games manufacturer, for using his image and name in an official FIFA computer football game. EA claimed that collective consent had in fact been obtained from the national (VdV) and international (FIFPro) football players’ unions but not from individual players, or Khan himself! This the Hamburg District Court ruled offside!

The increasing phenomenon of exploitation of sports image rights through new media platforms, including the Internet and (eventually) ‘third generation’ mobile ‘phones, which are now coming on stream, and the commercial opportunities they present for the creative use of sports programming and information content, also raise important issues regarding the  protection of sports persons’ image rights against the unauthorized use. Similarly, computer electronic and video sports games pose threats to image rights in cyberspace and the realm of virtual reality.

Another issue that arises in relation to the legal protection of image rights is the impact of the European Convention on Human Rights (ECHR). In the United Kingdom, for example, the possibility of protecting a person’s personality rights by invoking the rights to privacy and property under articles 8 and 1 respectively of the First Protocol of the ECHR, has been explored in a number of high-profile cases. The general view amongst UK media and IP lawyers is that the interest protected by image rights is not the same as the interest, which the right to privacy is designed to protect. In the former case, the right to be protected is the right of personalities to commercially exploit their own names and likenesses for their own benefit and the failure to do so causes them financial loss. Whereas a person’s right to privacy protects that person’s personal integrity and autonomy from unwanted surveillance and intrusive behaviour. Further, the right to privacy may indeed protect celebrities against invasions of their privacy but does not constitute a separate personality right per se. So far, no underlying property right in the persona of an individual has been legally recognised in the UK. Indeed, any legal extension of the right of privacy to a right of personality would have to be balanced against the right of freedom of expression safeguarded under article 12 of the ECHR.

The USA

In the US, these rights are known as ‘publicity rights’ and are generally all-embracing. However, there are certain limitations as a US case involving Tiger Woods well illustrates. In this case, a painting entitled ‘The Masters of Augusta’ commemorating Tiger Woods’ 1997 victory, and produced and sold by Jireh without Woods’ consent, was not held to constitute an infringement of  his ‘right of publicity’ by the court. Of course, this decision was made according to the particular circumstances of the case. Incidentally, Tiger Woods has recently been involved in two domain name disputes. Although he won the first case concerning a domain name registered by a third party in the name of his daughter; he was unsuccessful in the second case, regarding domain name charlieaxelwoods.com which was registered by a third party in the name of his son, who was born on February 8, 2009. Woods was not able to rely on his famous name alone to win this case: the ‘Woods’ of the domain name does not necessarily invoke the ‘Woods’ of the trademarks. Personal names are protected for the purposes of the ICANN Uniform Dispute Resolution Policy of 1999, but only where there is evidence of the name having been ‘‘…used in connection with the commercial offering of goods or services or that the personal name in question has acquired a secondary meaning as the source of those goods or services.”

The Law on the protection of image rights in the States is quite complex and beyond the confines of this post. For a more in-depth illustration, we recommend the book ‘Sports Image Rights in Europe by Ian S. Blackshaw and Robert C. R. Siekmann’

 

Fiscal Aspects

The image rights of leading personalities are increasingly being used and exploited to promote the sale of consumer products (especially new ones). As Anne M. Wall has pointed out:

‘‘One of the best uses of celebrities’ right of publicity is product endorsements. Personalities can be ambassadors for the products and services they use. Their endorsement and positive publicity can lift consumer brand awareness, enhance brand image and stimulate sales volume. Upon introduction, licensed products that carry a celebrity’s name can establish instant credibility for the brand in the marketplace”

For a striking example of this sports marketing phenomenon, take the case of Manchester United’s former striker, David Beckham. He earns millions more off the field of play as a retiree  through the commercialisation of his image and name, both of which are instantly recognisable, well known and marketable worldwide. In this sense, it can be said that his face is worth more than his feet and has become a brand in its own right.

As with any kind of business, the commercialisation of image rights also has a fiscal dimension that needs to be considered.  Image rights can be assigned as part of complex tax planning vehicles such as ‘Image Rights Companies’, and promoted under agency or representation agreements, where a third party collects commission every time successful promotion or management of an individual’s image rights result in a new endorsement opportunity, greater publicity, increase in sponsorship, or licensing for that individual.

However, the tax field is one in which the old adage that ‘circumstances alter cases’ is particularly pertinent. In other words, tax advice largely depends on the particular facts and circumstances of each individual case—as well as the aims to be achieved through any tax mitigation scheme. Equally, a cost–benefit analysis must be made in each case.

Opportunities exist in other parts of Europe for tax sheltering the financial returns from the commercial exploitation of sports image rights—not least in The Netherlands, which has a fairly comprehensive network of double taxation treaties around the world, which can be creatively used to save tax. In Switzerland, for example, tax mitigation structures may be founded on tax-exempt Not-for-Profit Foundations under Swiss Law.

 

 

                                                              


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