...the concept of an image right is a fairly new one. The iconic 1970s English soccer player, Kevin Keegan was the first sports personality to actively enter into what was then known as a “face contract” for what were essentially his image rights. The deal, concluded when he moved from the UK to Germany, reflected his notoriety beyond the pitch and his ability to sell merchandise.
While the US has long upheld a “right of publicity”, its acknowledgment varies from state to state and its application is somewhat random. Only around half of the states recognize it. That said, the US has been far more forgiving in terms of recognizing the commercial aspects of such rights than, for example, the UK which relies on an amalgam of privacy rights, passing off and false endorsement.
The radical changes brought about by the Internet over the past 20 years, mean that the traditional tools of copyright and trademarks are unable to deal with image rights issues. Copyright only protects the creators of works (or their assignees) and trademarks have a distinct function to protect names and brands in the sectors within which they operate. There are no specific legal tools which define image rights or redress the harm caused by unlawful use of a person’s image.
This was the case until Guernsey, one of the UK Channel Islands, took the brave step in 2012 to implement the world’s first image rights registry. In doing so, they made it possible to codify personality and image rights into a fully functioning form by offering a formal registration of these rights for the first time. As a result image rights can now be accurately recorded in relation to a particular personality.
Once registered, each of these rights may be licensed, sub-licensed or assigned in the same way as any other piece of intellectual property. This in itself is a huge step forward in terms of recognizing these rights and giving them legal clarity; something which has proven difficult in the past.
Having registered the rights, the owner (which can be any person or entity anywhere in the world) can make direct reference to specific image rights when structuring any endorsements contracts or sponsorship deals. This can be advantageous in the event of a dispute. Furthermore, like trademarks, copyright and patents, ownership of image rights can have tax consequences, and need to be managed to ensure they remain tax efficient.
One interesting feature of the Guernsey rights is that it is also possible for the not-yet-famous to register which provides for interesting planning opportunities around the rights.
These rights also provide a mechanism by which to tackle cases of infringement by unauthorized third parties and commercial dealings. While image rights, like other IP rights, are territorial in that they only have a legal effect in the country or region in which they are granted, any infringement online will potentially be subject to the jurisdiction of the Guernsey courts and thereby subject to legislation covering image rights. This reflects the practical reality of the current nature of infringement, as the online environment is where most modern day infringement is likely to occur in relation to these rights.
Under Guernsey law these rights may also be willed either in part or in whole, ensuring that these valuable assets pass seamlessly to the next generation. These rights can be renewed ad infinitum providing an enduring asset class. Contrast this with the time-bound nature of copyright and it is clear that image rights can represent huge value to the personalities in question and their heirs.
By legislating in this area Guernsey has created a new intellectual property asset class and set a benchmark for other jurisdictions to watch and potentially copy in the future. There is no doubt that image rights will become increasingly important and valuable as the internet and the seemingly perpetual cult of celebrity continues to mature. Just as the photo sharing website, Pinterest, raised some interesting questions for copyright law, the Guernsey image rights regime raises questions about the effectiveness of traditional tools of the IP system in addressing image rights. How long will it be before other jurisdictions take similar steps to ensure that the image rights of personalities are effectively addressed under their national laws?"