Topshop sold a t-shirt bearing Rihanna’s image, without Rihanna’s permission. The English High Court held that this was passing off of Rihanna’s image. Rihanna is “regarded as a style icon by many people” and has goodwill “not only as a music artist but also in the world of fashion, as a style leader”. The sale of the t-shirt damaged Rihanna’s goodwill as it “amounts to sales lost to her merchandising business” and “represents a loss of control over her reputation in the fashion sphere”.
Before this case, the general perception was that merely placing a celebrity’s image on merchandise without their permission did not constitute infringement of their rights. This case - the only UK case in recent memory in which a celebrity succeeded in preventing a retailer from using their image on merchandise (as opposed to on advertising material) - has revealed this thinking may be mistaken.
The conclusion reached in this case was tied very much to its particular facts:
- it involved a true global superstar who works hard to cultivate a brand not just in the world of music but also in the world of fashion (Rihanna);
- the image was a notable image of that global superstar which was prominent at the time (it came from a video shoot which had received press attention for being allegedly too risqué); and
- the retailer involved, Topshop, makes a huge amount of effort to emphasise its connections to style icons.
It’s not hard to see that this decision could significantly widen the scope of ‘image rights’. As consumers grow more and more used to purchasing merchandise endorsed by or officially connected with a celebrity, the scope for challenges based on ‘image rights’ widens. The judge said that “purchasers would not be surprised to find goods on sale in Topshop which have been endorsed or approved by celebrities”. However, you could also say this about other high street retailers today.
And with so many celebrities attempting to branch out from their original fields of fame into the world of fashion, retailers may begin to wonder where the line is drawn, and which celebrities have put in enough ‘effort’ to have a reputation in the fashion world.
There will be further developments in relation to the English Courts’ approach to celebrity image rights in the near future. Topshop have appealed the judgment and a decision from the Court of Appeal is likely in 2014. If the first instance decision is upheld this is likely to fuel further image right cases. While the judge in the Rihanna case was at pains to point out that a market stall selling the same t-shirt would not have been infringing, it remains to be seen what would happen in a case involving a celebrity with less star power and a different high street retailer.
This article is part of the BrandWrites Newsletter for November 2013