Remember back in May we told you Rhianna was suing Topshop for selling T-shirts with pictures of her face without her consent? Well the case hit the High Court yesterday. The Barbados star wasn’t in court herself as Geoffrey Hobbs QC, for Topshop battled it out with Martin Howe QC, for Rihanna.
She claimed sales of the shirt amounted to “passing off” and may have led to her reputation being tarnished with her fans, had they bought the garment thinking it was “genuine” endorsed merchandise with “an emotional connection to their heroine.”
Topshop lawyers argue that she is making an unjustifiable bid to establish a “free standing image right” over use of her picture in the UK. In the United States the right of publicity gives the right to control the commercial use of one’s image. The right has been recognised in a number of US states since the 1950′s and is mostly invoked by celebrities who find their likeness used to promote goods and services without their permission. However, the right doesn’t exist in England.
On Friday, the court heard Rihanna’s claim that the picture on the T-Shirt was “very similar” to images used on CD sleeves for one of her albums. The image in question was taken by a freelance photographer “without her permission” while Rihanna was filming a video in Northern Ireland for one of her first singles in 2011. Topshop claim to have bought a licence to use the image on the T-shirt from the photographer who took it.
They point out that, while the singer is claiming that Topshop T-shirt blighted her image, it has not stopped her entourage calling the retailers and “asking for products for her to wear” half a dozen times since she launched the lawsuit against them.
“A substantial number of people buying, or even seeing, those T-shirts would think they are approved or somehow connected with Rihanna, when, in fact, they were not approved of or connected with her at all” claim her legal team. “These garments were not only endorsed by her but were sold and labelled under Rihanna’s name and trademark. These ranges were highly acclaimed” they continued.
Rihanna’s lawyers want the judge to grant an injunction to prevent Arcadia and Topshop continuing to sell clothes “using the mark Rihanna or any confusingly similar name”, or passing off any goods as approved by her. They also want the delivery up or destruction of all clothes which would breach the injunction and the payment of damages.
Our money is on Topshop. Despite claims to the contrary, Rihanna and her legal team are essentially trying to enforce image rights by shoehorning them into a claim of passing off. As Hobbs pointed out, Topshop, having bought a licence to use the image from the photographer who took it, are fully entitled to sell the T-shirt. The lack of specific protection for celebrity personas is an anachronism in today’s world given the enormous economic stakes in merchandising famous identities. However, as unjust as it might be, we don’t have image rights in England and the law won’t change no matter how big a popstar you might be.
“We resist the claim on two main bases; first, this is, in substance and reality, an impermissible attempt by Rihanna to establish an image reproduction right in the UK. There is no such right” argue Topshop’s lawyers.
The hearing continues.