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How are image rights recognised under law?

There is no specific law in the UK dealing with image rights for individuals. However, there are various laws that can be applied to protect the value contained in a persona:

Passing off

In order to successfully bring an action for passing off, it is necessary to establish:

  • significant reputation or goodwill connected to the image of an individual
  • that the unauthorised use of the image misled the public into believing that a product has been endorsed by the individual, and
  • damage to the individual (although this is fairly vague)

For more information on passing off, read Trade marks and passing off.

Trade marks

Names, signatures and other graphical symbols which denote an individual can be registered as trade marks if they can be proven to be 'distinctive'. For example, the names 'David Beckham' and 'Victoria Beckham' are registered trade marks. This means that their names are protected trade marks and cannot be used to sell goods or services, such as perfumes, merchandise or posters.

However, this is not always possible (eg with common names etc).

For more information on trade marks, read Trade marks and passing off.

Privacy and data protection

Under article 8 of the European Convention on Human Rights, everyone has a 'right to respect' for their private and family life. This can potentially help an individual protect their image rights if it can be demonstrated that an action breached this right (eg if a photograph was taken in a private setting).

Furthermore, the Data Protection Act and GDPR apply some of the data protection principles to photographs of individuals, particularly where a photograph is linked to other personal data.

Defamation

If an image of an individual is used to promote a product or cause, without their permission, which damages their reputation, this could enable them to bring a claim of defamation against the company or organisation which has used their image.

Advertising

The advertising codes require advertisers to gain consent from celebrities and other individuals in relation to any advert which implies their endorsement. Furthermore, under the Consumer Protection from Unfair Trading Regulations 2008, businesses cannot falsely claim that a product has been endorsed or approved. For more information, read Marketing and the law.

Can I use images of celebrities for my products or services?

Not without their express permission. It is not enough to gain permission from a photographer to use an image of a celebrity; permission should also be sought from the celebrity (or their agent).

What are the image rights of dead celebrities?

Necromarketing (using dead celebrities - or 'delebs') to promote products via CGI - or even using their holograms in live concerts - is a relatively new phenomenon. Although there are some specific laws in the US, English and Scottish law are currently moot in this regard. A company that wants to use the image of a dead celebrity to endorse its products would generally be advised to obtain permission from the estate as a matter of courtesy - but the law has not yet been tested in the UK.


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