Yesterday‘s decision from the Court of Appeal upheld Rihanna‘s earlier victory against Topshop preventing the store from selling T-shirts with her picture. The ruling is likely to make retailers rather more careful in the future when using images of famous people. But will they still be allowed to?
Rihanna claimed that the public would think she was in some way linked with the clothing. She said customers would assume she had endorsed the T-shirts. As this was not the case, she claimed Topshop was Passing Off her rights. She won the first time round before the High Court. Topshop appealed. She was successful again because the judges felt that the public and those likely to buy the T-shirts would know of her endorsements and licensing activities in other areas. The photograph used was taken from the filming of a video for a single from her ‘Talk That Talk‘ album. The image was similar to that used on other Rihanna endorsed merchandise.
The Court said that consumers would assume she was actively involved in the products including having a say in their quality. As this was not the case, the judges concluded the public would be misled. As the High Court had held the first time around, Rihanna fans would think the garment had been authorised by Rihanna herself.
Retailers will however note that notwithstanding Topshop‘s defeat the judges confirmed that there is no concept of image rights here in the UK, as there is in the United States of America. Retailers may still be able to get away with using images of famous people but much will depend on not only the retailer, the individual concerned and ultimately whether buyers might be misled. Taking the appropriate legal advice will now be more commonplace.
The victorious Rihanna follows in the footsteps of Eddie Irvine. He won with a similar complaint against TalkSport Radio for an advertisement they put out.
Retailers should comfort themselves with the fact that at least one of the judges felt it was a very borderline case. Previous cases have often found in favour of the retailer, especially for example where the famous individual was deceased. The estate of Elvis Presley was unsuccessful in preventing the sale of various items of merchandise. The court concluded that having been dead for many years there was no way he could have endorsed the products.
A further appeal is possible but highly unlikely. 2-0 to Rihanna seems to be the final score in this particular match.
Jeremy Pennant, Partner at D Young& Co
