The Court of Appeal has recently decided the outcome of a dispute between Topshop and Rihanna, agreeing with the outcome of the original case in the High Court back in 2013 and pointing out that this was a finely balanced case. Importantly the Court of Appeal decision gives a clear reminder that celebrities do not have a freestanding right to control the reproduction of their image. Individuals in England do not have image rights in the strictest sense but other related rights do exist, such as the right to control copyright protected photographs. Rihanna sued Topshop over a t-shirt they were selling which featured a prominent photograph of the popular music artist. Rihanna won the case in the High Court. But Topshop took the case to the Court of Appeal. Rihanna did not claim that her copyright had been infringed, in fact she did not own the copyright to the image that was used. That belonged to the photographer who had in fact given permission to Topshop to use his photograph. Instead she sued Topshop for “passing off”. This is where a business makes a false representation which damages the goodwill of another. Rihanna argued that Topshop were passing-off their t-shirts as being connected to, or endorsed by, her when they were not. Passing-Off is notoriously difficult to prove and if you are to do so, you must establish three things:
- You have goodwill and reputation;
- Your opponent has made a misrepresentation; and
- That you have suffered damage as a result of that misrepresentation.
Given Rihanna’s iconic status, she did not have any difficulty establishing that she had goodwill and reputation amongst the English public. As His Honour Judge Birss QC put it, in the High Court case: "Rihanna is a world famous pop star. She has a cool, edgy image…Rihanna was and is regarded as a style icon by many people, predominantly young females between about 13 and 30”.
This case turned on whether or not the selling of these particular t-shirts amounted to an unintentional misrepresentation by Topshop that the t-shirts were authorised by Rihanna. In other words was it likely that customers were deceived into thinking the image was authorised by Rihanna and that they would buy the t-shirt under this mistaken belief? The facts in this case created a particular set of circumstances which are unlikely to be frequently repeated. Firstly, the image used was taken by a photographer during a video shoot for one of Rihanna’s albums. So the photograph looked very much like a publicity shot for this album. Rihanna fans are likely to have noticed the similarity. Secondly, Topshop has made considerable efforts to show a link between it and Rihanna, including Twitter comments about her visit to a Topshop store, a competition for members of the public to win a Topshop style consultation with Rihanna herself and the sale of Rihanna authorised products in Topshop stores.
However, the t-shirts did not include any specific indication that they were authorised by Rihanna. For example, they did not feature her name, which is a registered trademark, or her recognisable ‘R slash’ logo.
The Judge in this case found that the fact the t-shirts lacked Rihanna’s name and logo was a clear indication that the product was not authorised by Rihanna but that the impression created by the nature of the image and the many previous connections between Rihanna and Topshop meant that people purchasing this particular t-shirt would think that it was an authorised product. He did not spend a lot of time considering whether Rihanna had suffered damage from the unintentional misrepresentation and in short found that the selling of the t-shirts amounted to lost sales for Rihanna’s own merchandising business and a loss of control over her reputation in the world of fashion; that she has the right to choose which products are endorsed by her.
The Court of Appeal fully endorsed the High Court decision, and found in favour of Rihanna This is a useful case and provides a very clear and up to date reminder of what is essential for a Passing Off claim to succeed. It is also an important reminder that individuals do not have image rights in England but that they can use Passing-Off as a means to restrict unauthorised use of their image.
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