Author: Mark Buckley
This article was first published in SportBusiness International on 2 October 2013.
The basis of image rights differs from region to region, causing confusion especially when it comes to cross-border player transfers. Mark Buckley explains how effective legislation is in various countries.
There was huge press interest in the transfer of English Premier League (EPL) Tottenham Hotspur footballer Gareth Bale to Spanish La Liga club Real Madrid, not least in connection with his image rights.
You may have also read an article about Guernsey’s image rights legislation in this connection. But what are “image rights” and are they the same in all countries? What follows is a short summary of the position.
In the UK, perhaps surprisingly, there is no legal concept of image rights (although they are recognised for tax purposes). Celebrities whose images are used without their permission to endorse products or services can sue for the common law remedy of passing off.
Formula one driver Eddie Irvine was the first to do so when he successfully sued the radio station TalkSport for using his image on advertising fliers. More recently, Rihanna sued Top Shop for using her image on a t-shirt in a way that the judge said might cause customers to think the t-shirt was authorised by the singer.
Most other European countries are civil law countries that is to say their basic legal principles are set out in a written code. Bale will be pleased to know that in Spain image rights are a fundamental right enshrined in the constitution, because they are a “manifestation of a person’s dignity” and must be respected and identified by others. This covers voice, name, image and recognisable features of the person.
Similarly, the German constitution contains a general personality right protecting a person’s dignity, which includes the right to develop one’s personality. Damages for infringement however are modest. Germany also has similar remedies to the UK for passing off, trademark and copyright infringement. Additionally, pictures (including that of a jockey’s horse and a goalkeeper’s back) can only be published with the consent of the depicted person.
The French civil code sets out a general principle that “each human being has the right to have his private life respected”. Cases have included Linda Evangelist’s image dressed up as Joan of Arc and Eric Cantona’s picture on the cover of a video.
The position in the US is more complex. A tort of wrongful appropriation of a persona exists. Initially, publicity-based lawsuits under this tort were based on a right to privacy. Subsequently, the courts developed this into a “right of publicity” protecting prominent person’s images being used without consent. In addition, many states – most noticeably California – give the common law right of publicity a statutory foundation.
Cases include Motsehembacher v R J Reynolds Tobacco which held that an advertisement using a racing driver’s distinctive white pinstripe car, even where the driver’s face was not seen and his number had been changed, was an infringement of his right of publicity.
Singer Tom Waites was also awarded punitive damages for a voice-alike used in commercials. However, a recent Florida case held that the use of someone’s image in a film was not an infringement as the film did not promote a product.
Image rights can mean very different things with different consequences depending on the country in question. Bale, however, seems to be on strong ground.
Mark Buckley, Partner, Fladgate LLP (email@example.com)