This statement by Mr. Justice Birss in the recent Rhianna and TopShop case in the United Kingdom High Court (Fenty & Ors v Arcadia Group Brands Ltd (t/a Topshop) & Anor)  neatly describes the current state of play in relation to image rights in the UK. It is, however, directly at odds with the currency of images and celebrity around the world. It is also at odds with the practical reality of the taxation of such rights in the UK and abroad and the contracts that celebrities and businesses enter into daily in relation to these rights.
For many years it has been common practice for sports stars and entertainers to have two streams of income, namely performance income and “other” income. Monies from endorsement and sponsorship deals as well as ad hoc payments for personal appearances fall into the “other” category. This split income system recognizes the ability of these individuals to earn money from two distinct sources, one active and one passive. In many cases, these ad hoc duties have been given the collective title of image rights and the concept of payments for image rights services has become commonplace. It therefore seems illogical that the legal system has failed to recognize these rights as a separate piece of intellectual property (IP) nor has it allowed for a system of registration such as that for trademarks.
With the emergence of the world’s first image right in Guernsey in 2012, an IP product was made available which sought to change this situation and fill the current gaps in the traditional IP system.
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