The Economic and Dignitary Interests in Personality

Image rights involve the commercial appropriation or exploitation of a person’s identity and associated images linked to that person. They are related to the distinctive expressions, characteristics or attributes of, or associated with, a personality made available to public perception. Image rights are an integral part of artistic expression and a product of celebrity or sporting achievement in the twenty-first century. Image Rights (Bailiwick of Guernsey) Ordinance establishes a new form of intellectual property, previously unrecognized in a registrable form. Two key concepts anchor the legislation: (1) the “registered personality”, and (2) “images” which are associated with or registered against that registered personality. The core right is the registered personality (Adrian, 2013)

Hitherto, there has been no means for the legal registration of personality and image rights anywhere. The ability to publicly assert, exploit and protect image rights has instead depended on the use of a number of laws that seek to protect specific types of intellectual property, but where none are specifically designed for protecting such rights. In contrast to the existing legal concepts, ‘personality’ has now become a property right – i.e. not just something that happens to a person, but something that can be commercially exploited by, but also stolen from, a person. The IRO provides a legal framework which protects both economic and dignitary interests, without having to sacrifice one for the other.

This new law cures the central problem of reconciling economic and dignitary aspects of personality within a cause of action. Beverley-Smith (2002) detailed a scheme in which the main interests that would be damaged by appropriation could be divided and more easily understood.

  • Economic interests

1                     existing trading or licensing interests

2                     other intangible recognition values.

  • Dignitary interests

1                     interests in reputation

2                     interests in personal privacy

3                     interests in freedom from mental distress (Beverley-Smith, 2002).

The first actions developed primarily protected dignitary interests rather than economic interests. Thus, the right of privacy was developed before the right of publicity. Personal dignity was deemed of more importance but was harder to define. The extent and precise form of protection tends to differ greatly around the world. At first, most legal systems would give priority to claims for physical injury. But as societies evolved, claimants began to demand redress for other kinds of harm. Interests in reputation or personal honour, personal privacy, and interests in freedom from mental distress became more important (Adrian, 2008).

English law does not use the Roman concept of injuria, which would mean insult or outrage if directly translated. The Roman idea ‘embraced any contumelious disregard of another’s rights of personality’ (Nicholas, 1962). In the absence of such a notion, the English gave limited recognition to non-economic or dignitary interests. Recovery for invasion of interests such as privacy and freedom from mental distress thus has been achieved parasitically by relying of judicial interpretation of other torts such as defamation and trespass where other substantive interest such as reputation, property or interests in the physical person have been affected (Beverley-Smith et al., 2005).

In the USA, the right to privacy was developed in an article by Warren and Brandeis (1890), who derived the concept of a right of privacy from the English case, Albert v Strange, 1 McN. and G. 23.43 (1849). They borrowed the term ‘privacy’ to describe their concern with media intrusion into the affairs of private citizens. Essentially, the article defended the individual’s ‘right to be let alone’ arguing that the common law allowed every individual the right to determine the extent and manner in which his thoughts might be communicated. A right held irrespective of the method of expression adopted, the nature or value of the thought or emotion, or the quality of the means of expression (Warren and Brandeis, 1890). By way of analogy, they looked at the protection provided by common law copyright and determined that private thoughts and actions were entitled to some similar protection (Ibid).

This right of privacy was a natural development, evolving as a logical application of common law principles to new developments. They concluded that common law was initially created to protect property and life from physical injury. Warren and Brandeis then noted that as legal systems began to recognise the spiritual nature of human beings, the common law expanded to include that protection of intangible possessions and non-physical injuries through laws such as assault, nuisance, libel and slander (Ibid). They examined the common law to see if it afforded protection to those individuals ‘victimised’ by new technologies. Thus, the law could be invoked to protect the privacy of the individual from invasion by the over-intrusive press, by photographers or by the use of modern devices for recording and reproducing scenes or sounds. Such protection was not just for conscious products of labour, but also for the person and one’s personality (Ibid; see also, Madow, 1993).

The rationale underlying the right of publicity is rooted in both privacy and economic exploitation. The right of publicity is a state-based right, as opposed to federal, although it interacts closely with 1st Amendment rights. In most state jurisdictions without a specific right of publicity statute, the right of publicity may still be recognized via common law. The rights are based in tort law, and the four causes of action are:

  • —  intrusion upon physical solitude;
  • —  public disclosure of private facts;
  • —  depiction in a false light; and
  • —  appropriation of name and likeness.

On the most basic level, the right of publicity is an individual’s right to prevent others from commercially exploiting his or her identity (voice, name, likeness, etc.) without permission. Given the way that this area of law has been trending, that right is available to virtually everyone, not just to A-list celebrities. If you violate someone’s right of publicity, you can be forced to take down the content in question and/or pay monetary damages to that individual.

One of the most intriguing recent right of publicity cases, Fraley v. Facebook, Inc., 11-CV-01726 (N.D. Cal., filed Apr. 4, 2011), is a class action lawsuit against Facebook over its “Sponsored Stories” advertising services. This lawsuit arose because certain Facebook users were dismayed upon finding out that their names and user profile photographs were arranged by Facebook in the perimeter of newsfeeds viewed by their friends based on their “likes” of various branded products. Interestingly, Facebook’s own admissions that such advertising has approximately double the value of an advertisement without an accompanying “testimonial” allowed the case to survive a motion to dismiss. Given that the plaintiffs in Fraley were able to show a “direct, linear relationship between the value of their endorsements of third-party products, companies, and brands to their Facebook friends, and the alleged commercial profit gained by Facebook,” they have been allowed to continue their right of publicity case.” (Ibid)

On the other hand, British courts have been reluctant in creating monopoly rights in nebulous concepts such as names, likenesses or popularity.[1] In the absence of privacy, personality or publicity rights, celebrities in the UK are forced to try to seek protection of the business value of their personality or popularity under trade mark, registered design and copyright laws, as well as to attempt to establish an extension of the tort of passing-off and various other torts. The protracted litigation in Douglas provided clarification on the extent to which breach of confidence can be used to protect privacy (Douglas v Hello Ltd [2001] E.M.L.R. 9).[2]

In June 2003, the Select Committee on Culture, Media and Sport issued its report concerning privacy and media invasion. The committee concluded: “On balance, we firmly recommend that the government reconsider its position and bring forward legislative proposals to clarify the protection that individuals can expect from unwarranted intrusion by anyone – not the press alone – into their private lives. This is necessary to fully satisfy the obligations upon the UK under the European Convention on Human Rights.” (Thomson, 2003) The response of the government was to issue a statement saying that it had no intention of bringing in specific legislation to protect privacy. The government’s formal response in early October 2003 was that following HRA 1998, the government is content to let the courts deal with the issue: “The weighing of competing rights in individual cases is the quintessential task of the court, not of government or of parliament. Parliament should only intervene if there are signs that the courts are systemically striking the wrong balance; we believe there are no such signs” (Ibid).

Ten years later, opinions are changing. Recently, the protection of image rights was explored at the Intellectual Property Lawyers’ Organisation (TIPLO) dinner at the House of Lords. Among the guests were Martin Howe QC, one of the lawyers who acted for Rihanna in Fenty v Arcadia [2013] EWHC 2310 (Ch) when the pop singer made a successful claim against Topshop for using her image without her consent. “With cases like Fenty v Arcadia making headlines across the country, and indeed the rest of the world, there is an increased interest in the way that celebrities protect their images. This interest heralds opportunities for Guernsey thanks to the unique image rights legislation.” (Gray, 2013) The first session of the debate was entitled ‘Image Rights – a case for registration’. The discussion focussed on whether the UK should follow Guernsey in introducing registration of image rights or whether trade mark and passing off rights were enough protection.

References:

  • Adrian, A (2013) Mickey Mouse wants to live forever: The Guernsey Image Rights Ordinance may allow that, European Intellectual Property Review.
  • Adrian, A (2008) Avatars:  A Right to Privacy or a Right to Publicity, International Journal of Intellectual Property Management, Vol. 2, No.3.
  • Beverley-Smith, H (2002) The Commercial Appropriation of Personality, Cambridge Studies in Intellectual Property Rights.
  • Beverley-Smith, H, Ohly, A and Lucas-Schloetter, A (2005) Privacy, Property, and Personality: Civil Law Perspectives on Commercial Appropriation, Cambridge Studies in Intellectual Property Rights.
  • Gray, E (2013) Guernsey Image Rights Discussed At House Of Lords, Guernsey Finance
  • Madow, M. (1993) Private ownership of public image: popular culture and publicity rights, 81 Cal. L. Rev. 127.
  • Nicholas, B.N. (1962) An Introduction to Roman Law, Oxford University Press.
  • Thomson, M. (2003) Confidence, privacy and damages: hello! to clarity, New Law Journal.
  • Warren, S. and Brandeis, L. (1890) The right to privacy, 4 Harv. L. Rev. 193.

[1] Earlier cases were concerned with honour and reputation, see Lord Byron v Johnston (1816) 2. Mer. 29; Clarke v Freeman (1843) 12 Jur. 149; Routh v Webster (1847) 10 Beav. 561. As early as in du Boulay v du Boulay, (1869) L.R. 2 430 PC, a court stated that the use of another’s name is a grievance for which English law affords no redress. English law has never moved towards creating rights in a name per se (see for example Earl Cowley v Countess Cowley [1901] A.C. 450). In line with this doctrine, protection for other personality features such as likeness, voice, distinctive clothes, etc., or a more general right of publicity has constantly been rejected: first in Tolley v Fry, [1931] A.C. 333, then in McCulloch v May, (1948) 65 R.P.C. 58, through various celebrity merchandising cases  in the seventies, (Wombles v Wombles Skips Ltd [1977] R.P.C. 99; Taverner Rutledge Ltd. v Trexapalm Ltd [1975] F.S.R. 479; Lyngstad v Annabas [1977] F.S.R. 62.). The Whitford Committee considered integrating ‘character rights’ for fictional characters into the Copyright Act but concluded that they would fit better within an unfair competition law, Cmnd. 6732 HMSO, 1976–1977, para. 909 in 1977. Then in Elvis Presley Enterprises Inc. v Sid Shaw Elvisly Yours, [1999] R.P.C. 567, the courts appeared to like neither the celebrity nor the merchandising business.

[2] In a comprehensive judgement by Lindsay J. in Douglas, [2003] 3 All E.R. 996 he held that, because of the exceptional nature of a wedding and the elaborate and expensive security measures adopted by the Douglases, the event was private in nature and that the images of the couple were confidential. The exclusivity deal with OK! was a legitimate and reasonable way to control and limit the press exposure, and resulted in the information becoming a valuable commercial trade secret. He went on to find that subterfuge and surreptitious means had been used in obtaining the photographs. He also found that that the claimants had suffered detriment and damage, including the genuine distress in the realisation that someone had invaded and taken pictures of their wedding ceremony. Other interesting points made in this ruling include the fact that even if the Douglases were public figures who had previously welcomed publicity, the confidentiality of their wedding was still protected. Moreover, the sale by the Douglases of exclusive rights in information to OK! did not affect or reduce the level of protection; nor did the fact that private and confidential photographs were about to be published by OK! reduce protection under the law of confidence (Thomson, 2003).

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