26 September 2013
Rihanna has welcomed more good news in her legal battle with Topshop. Following her victory against the fast fashion retailer back in July over the sale of a t-shirt bearing her image, Mr Justice Birss yesterday awarded the singer a permanent injunction against the high street giant which is now banned from selling the t-shirt again or using her image. This latest update appears to back up suspicions that Justice Birss is attempting to create a right of publicity here in England.
The popstar had 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.” And the judge agreed. Wigsandgowns were more than a little surprised at the judgment back in July. Rihanna and her legal team essentially attempted to enforce image rights by shoehorning them into a claim of passing off. Image rights, known as the right of publicity in the USA, gives the right to control the commercial use of one’s image. The right has been recognized in a number of US states since the 1950′s and is mostly envoked by celebrities who find their likeness used to promote goods and services without their permission. However, the right doesn’t exist in England. Celebrities must instead make use of alternative legal doctrines when seeking to protect their image. From this perspective, 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. The law of passing off is regularly used in circumstances when the right of publicity would more accuratly fit should it be introduced into English law.
Mr Justice Birss ruled that a “substantial number” of buyers were likely to have been deceived into buying the T-shirt because of a “false belief” that it had been approved by the singer.“The mere sale by a trader of a T-shirt bearing an image of a famous person is not an act of passing off. However, I find that Topshop’s sale of this T-shirt was an act of passing off” he said.
If this is the case, we question how he can he grant a permanent injunction against Topshop ever using Rihanna’s image again? If the sale of a t-shirt bearing the image of a singer is not illegal per se, how can the judge rule on all future t-shirts or other Rihanna images without effectively creating a right of publicity? The judge said it was ‘right and fair’ to grant her a permanent injunction because Topshop had failed to promise not to use her image on T-shirts in the future. We fail to see why Topshop should make such promises – they are perfectly within their legal rights to use her image unless it amounts to passing off or breaches the copyright of the photographer.
The Arcadia Group, which owns Topshop, was also ordered to pay Rihanna’s estimated £919,000 legal fees. The judge did say, however, that he found the star’s fees “startling” and “somewhat surprising”. Rihanna also sought the return of any unsold T-shirts, but the court in Central London was told that all 12,000 had been sold and only five were left and kept for the legal action.The judge gave Topshop permission to go to the Court of Appeal which it no doubt will. We look forward to the next instalment and establishing if the ‘Rude Boy’ singer really has changed English law.
More to come!