The Court of Appeal has rejected an appeal by Topshop against the recent High Court decision that it had infringed the intellectual property rights of the popstar Rihanna when it sold a t-shire decorated with a picture of her.
The case (both at the High Court and Court of Appeal) attracted criticism, as many people came to the conclusion that it effectively created “image rights” for celebrities. However, the Court of Appeal made it very clear in its judgment that this is exactly what it was not doing.
English law does not give any person, famous or otherwise, a right to control the licensing of their name or likeness. Any claims in relation to images therefore have to be based on existing recognised intellectual property rights, such as copyright, trade mark or, as in this case, passing off. The judges, both in the original High Court case and in the Court of Appeal, also made it very clear that the sale of a t-shirt bearing an image of a famous person does not in and of itself, amount to passing off and the fact that the image of a celebrity appears of an item does not necessarily mean that the public will assume that celebrity has endorsed it.
However, the Court of Appeal did find that Rihanna had goodwill in relation to fashion clothing. It also found that the use of the image on the t-shirt amounted to a representation that Rihanna had endorsed it. The court made much of the fact that Rihanna is known as a style icon and that Topshop had sought to heavily publicise any connection that it had with her or her image, including lots of publicity whenever she shopped in its stores or wore a piece of its clothing. It was also notable that the image used was very similar to promotional material used for one of her albums.
Lord Justice Underhill did sound a note of warning that he considered the case to be close to the borderline. Celebrities would be advised to take note and not use this case to try and push the boundaries on the highly controversial area of image exploitation.