Who has the rights to my image?

In February 2001, the Mirror ran a piece about Naomi Campbell with photographs of her leaving a meeting of Narcotics Anonymous. The article appeared on the front page, with a double-page spread inside, both accompanied by photographs taken by a freelance photographer employed by the Mirror.

The tone was reasonably neutral, if a little smug, in that the Mirror seemed to relish the fact that it had revealed that Naomi Campbell was at a meeting where the participants attended on the basis that they were supposed to be anonymous; the paper seemed to think it had been rather smart to do this.

Naomi Campbell issued proceedings against Mirror Group Newspapers (MGN Limited) on the same day as publication, and the newspaper responded in print, and in a different tone, calling her, over a period of time, a hypocrite, pathetic, and accusing her of whingeing. The paper published more photographs.

As unlikely as it might seem, this was pretty much the germ of the idea of a proprietary image rights register. The dissenting judgment of Lord Hoffmann in the ensuing case of Campbell v MGN Limited, which reached the House of Lords in 2004, provided the following analysis of Naomi Campbell’s position: she was someone who made her living from publicity, selling her personal appearance and her personality; she employed professionals to advise her regarding her dress and make-up and, in much the same way, retained public relations advisers to present her personal life in the best possible light; and her image was fundamental to her working life.

Naomi Campbell succeeded in her claim against MGN Limited, which was based on breach of confidence on the part of the newspaper, coupled with the need to achieve compatibility with the right to private and family life contained in the European Convention on Human Rights. But it had taken years of litigation, huge expense, and a visit to the House of Lords to achieve this. In another case, Lindsay J drew attention to the unsatisfactory prospect of the courts creating law bit by bit, at the expense of the litigants. Some alert Guernseymen thought that a better approach would be to recognise that the exploitation of images was a commercial reality and that legal certainty was lacking. A public register could help to deal with these issues and allow exploitation of image rights in a much clearer fashion.

The legislation that came into effect in Guernsey just over a year ago is built on the concept that personality and image rights are property rights that are universal and unique. The rights include both a right of privacy (the right to constrain the use of a person’s image) and a right of publicity (the right to benefit from income arising from the commercial use of the image). Personality and image rights are expressed publicly through these attributes, and are part of artistic expression, celebrity, and sporting achievement. The person’s image in this context can be manifested by a variety of means that are defined in the Guernsey law. The legislation uses the word “personnage” as a definition of the entity whose image rights can be registered under the law, and these can include natural and legal persons, fictional characters, groups of persons, and two or more persons that are intrinsically linked (such as Richard and Judy, as a hypothetical example).

Image rights currently are mainly controlled and licensed by contractual means, by using trade marks, and enforced through the tort of passing off, privacy, and defamation: there is no free-standing right relating to personality. Sponsorship and endorsement contracts have challenged legal draughtsmen to define the boundaries of a multiplicity of “rights” in many contexts and in a number of jurisdictions, but no regime of registration has existed in the Western world. One of the benefits of registration is the overt public assertion of separation between the personnage and his or her proprietary rights. Another benefit is clarity, in that what is protected has a precise definition. Briefly the protected attributes are:

1. The person’s name or any other name by which he/she is known;
2. The voice, signature, likeness, appearance, silhouette, feature, face, expressions (verbal or facial), gestures, mannerisms, and any other distinctive characteristic or personal attribute of the person;
3. Any photograph, illustration, image, picture, moving image, or electronic or other representation of the person.

Any feature of a person’s image that falls outside the list can of course still be controlled and licensed in the existing ways, but it cannot be registered. The rights that can be protected by registration are more comprehensive than the image related rights that can be registered as a trade mark.

There is a series of exceptions and limitations to safeguard free speech and issues of public interest.

The register is a public register and can be searched online. Registrations can be made in person or through an authorised image rights agent.

So, to whom might this appeal?

First, there are those who might want to register their image rights and then authorise others to use them in return for payment. Depending on the individual appetite of the owner of the rights, there are opportunities to structure the licensed activity in a tax-efficient way. The licensing might cover product endorsement, merchandising, and personal appearances.

For others, the main attraction might be in succession planning: the rights may be registered for up to 100 years after death and so could be valuable to those that inherit them.

Others may want to monetise their image rights by assigning them for payment. In short, there are a number of opportunities to manage the image rights asset, for the benefit of clients, with the opportunity to separate the ownership and exploitation of the rights, and to deal with them separately.

What happens if registered image rights are infringed?

This is a Guernsey law, applying within the jurisdiction of Guernsey, and therefore, for an infringement to be actionable, it must have occurred in Guernsey. The essence of infringement lies in the unauthorised communication of the image that produces certain defined effects. In the world of the internet and satellite television, it would generally not be difficult to show that such communication within Guernsey’s jurisdiction had taken place, and that an actionable infringement had occurred. Action could then be taken before the Royal Court and, if successful, the judgment would fall to be enforced in the courts of the appropriate jurisdiction. In England and Wales, for example, this can be achieved under the Foreign Judgments (Reciprocal Enforcement) Act 1933 as extended by the Reciprocal Enforcement of Foreign Judgments (Guernsey) Order 1973.

What are the “prescribed effects” referred to above?

Image rights can be infringed by the use of an image for commercial purposes or financial or economic benefit without the owner’s consent, where, either:

1. There is likelihood of confusion on the part of the public (which includes the likelihood of association of the image with the registered personality) because the image is identical or similar to a protected image; or
2. The image is identical or similar to a protected image, and the use of that image takes unfair advantage of the distinctive character or repute of the personnage, or is detrimental to the distinctive character or repute of the personnage or the value of the registered personality or images.

What has the take-up been like?

Significant take-up of image rights registrations has taken place, although, it has to be admitted, at a “slow-ahead” pace. The feedback indicates that the establishment of the Guernsey register has been welcomed, and that Guernsey as a jurisdiction gains credit for innovation. Professional advisers practising in this area mostly “get” the potential advantages of the register, but there is reticence about moving to “full steam ahead”. There are a number of reasons that have been identified that might be contributing to this.

First, it is assumed in some quarters that anything to do with Guernsey must (by definition) be about tax avoidance, and that carries with it reputational risk. This is a tired perception that is not logically well founded, but it is persistent. Image rights registration is tax-neutral.

Secondly, the professional advice in this area has not yet reached a critical mass that sufficiently backs up the commercial advantages: Guernsey practitioners believe that this is a matter of time and application of promotional effort.

Thirdly, there is said to be doubt about international enforceability. However, the mechanism for enforcing Guernsey judgments internationally is outlined above, using the UK as an example. Additionally, in terms of treaties and conventions, the Guernsey law is TRIPS-compliant, and Guernsey is in the process of acceding to the Berne and Paris Conventions.

Fourthly, some would like to see a test case. Some observers think that the likelihood of such a case occurring may be remote and that it would be an unusual case that the protagonists would pursue all the way to litigation.

Fifthly, there is simply a natural reticence around being an early adopter of novel legal technology. “Please go first.” “No, after you.”

So, it appears that registration of image rights in Guernsey is becoming a useful tool for sportsmen, DJs, football managers and others, and those who look after their interests. A breakthrough might occur when an agent, academy, or club decides to offer registration for its talent; and the challenge for lawyers may lie not so much in the registration process itself but in constructing contracts that mediate between the competing interests of the personnage and the owner of the rights.