Image Rights in IP Law: Limits to Product Advertisements
It’s almost a requirement these days for barber’s shops around to have an image of either Obama or Ludacris in or outside their salon. This gets really confusing, especially when you hear that someone like LeBron James is on a 1billion dollar lifetime endorsement deal with Nike, so what unique endorsement are these small corporations running on. In Intellectual property protection, this borders on image rights.
Image rights have been defined as the expression of a personality in the public domain, also as those rights that individuals hold to the representation and commercialization of their persona. As a general rule on image rights, it is accepted that the use of a person’s image to create the false idea of the person’s endorsement, is an infringement on such a person’s image rights, under torts law, this referred to as passing off. In the case of Robyn Rihanna Fenty & Ors v. Arcadia Group Brands Limited & Anor, where the defendants were selling copies of T-shirts with an image of Rihanna on it without getting authorization from the artiste. The court recognized that with regard to the circumstances surrounding the incident, the use of that particular image created a false idea of Rihanna’s endorsement of the product and the court further held in favour of the claimant(Rihanna) as the action was regarded as an act of passing off.
Does this mean that salon beside your house with an image of Nicki Minaj on it’s banner has infringed on her image rights?. Well, let’s see.
One of the first things to be considered is whether or not the person or corporation using the image actually has appropriate rights to use the image. It is worthy of note that the fact that an image is in the public domain, say on Instagram, does not mean the general public has the right to freely use those images. A user needs permission from either Instagram or the owner of the image as the case may require. However, at the same time it is not necessary that a person gets permission from the person represented in the image before the person can be said to have rights to use it. In most cases, the photographer owns the rights to the picture, except where he was hired. An example is in the earlier mentioned case between Rihanna and the fashion retailer. Here, the fashion retailers purchased the picture from a third party photographer who actually had rights to the picture. The court recognized that as regards this, the retailers actually had the required rights to make use of the image.
Another issue to be considered here is whether or not the use of the someone’s picture is to represent the person’s endorsement of the product or brand, where such endorsement does not actually exist. In the case, Jordan v. Jewel Food Inc. the court held that the stores tribute advertisement to Michael Jordan created the idea of an affiliation between the two parties whereas there was none, this was regarded as an infringement on his rights.
Furthermore, laws of the US provide for the Right of Publicity. The Right of Publicity is the right of an individual to control the commercial use of his/her identity by preventing unauthorized commercial use by other parties. This right prevents unauthorized persons from making profit off the identity of another. In the earlier mentioned case between Michael Jordan and Jewel Food Inc. the court held that the tribute ad formed commercial speech i.e. it was meant to promote the brand, thus helping to improve their profits using the athlete’s reputation. Where the image or representation does not have commercial benefit attached, it can be permitted through the fair use doctrine, where it meets the requirements.
Presently in Nigeria, there aren’t many laws on the protection of image rights, however, Section 37 of the 1999 Constitution(as amended), provides for the Right to Privacy. Asides this, where Nigerian statutes and case laws fail to adequately provide rules on issues like image rights, Courts in Nigeria could apply case laws from other jurisdictions like Britain on deciding such cases.
The question on whether that small business beside your house is legally permitted to use that celebrity’s image on it’s poster, depends firstly on whether or not they have the required ownership rights or license to use the image. Then, does the use of that person’s image project the person’s endorsement which would boost the corporation’s commercial gain. It is at the discretion of the court to determine whether a barbing salon using Obama’s image on it’s poster is falsely implying his endorsement for their commercial gain.
When next you see that startup business in your area designing a wonderful poster with Naira Marley’s face in the middle, you might want to ask whether they have the required rights to make use of that picture.
About the Author
Samuel Oluwasegun is a 200 level law student with avid interest in Intellectual Property law as well as Fintech law. He is interested in the use of Law and Technology to impact society.
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