The Court of Appeal of England and Wales has found that the sale by the well-known retailer Topshop of a t-shirt bearing an image of the famous pop star Rihanna without her permission amounted to passing off and was therefore unlawful. Rihanna won in the High Court and Topshop appealed, unsuccessfully, to the Court of Appeal.
Why is this significant?
This is the only UK case in recent memory in which a celebrity has succeeded in preventing a retailer from using their image on merchandise, rather than in advertising material. Previously, it was generally understood that merely putting a celebrity’s image on merchandise without their permission did not constitute an infringement of their rights. This case indicates that, while this general principle still applies, it is subject to exceptions.
What do I need to know?
The Court of Appeal agreed with the High Court judge’s decision that Topshop’s sale of the t-shirt amounted to passing off because it amounted to a misrepresentation that Rihanna had endorsed it. However, its conclusion was tied to the particular facts of the case, including:
- Rihanna was a global superstar who had worked hard to extend her brand from the music world into the world of fashion;
- The image used was notable as it came from a music video shoot which had received significant press attention in the UK for being too risqué - it could therefore be taken for a publicity shot for a recent musical release; and
- Rihanna had previously collaborated with other high street retailers, including Topshop, which had itself previously collaborated with other style icons.
The Court of Appeal repeated the general principle that there is in English law no ‘image right’ allowing a celebrity to control the use of their image, but found that Rihanna had overcome the ‘two critical hurdles’ in a claim for passing off:
- the application of the name or image to the goods has the consequence that they misrepresent the source of the goods; and
- the misrepresentation must be material so as to have an effect upon the customer’s buying decision.
While the decision might be said to widen the scope of ‘image rights’ in the UK, the general principle still stands that there is no 'image right' as such under UK law. There are exceptions to the general principle but these are likely to be tightly construed. Two of the three Court of Appeal judges regarded this case as 'close to the borderline', indicating that the outcome was highly dependent on the particular facts, in particular both Rihanna’s past public association with Topshop and the particular features of the image itself. Nevertheless, it is likely that this decision will fuel further image right cases, particularly given that celebrities are increasingly branching out from their original field into the world of fashion.
This article is part of BrandWrites by Bird & Bird - May 2015