As reported in The Guardian, singing superstar Rihanna successfully asserted her rights in her own image in a London court recently. A High Court Judge found clothing retailer Topshop guilty of “passing off” as official merchandise an unauthorized tank top emblazoned with Rihanna’s image. Interestingly, what likely would have been a very straightforward case under laws in the United States was not necessarily a sure thing in the United Kingdom.
The t-shirt at issue, which was sold by Topshop in 2011 and 2012 under the name “Rihanna Tank,” featured a blown-up photograph of Rihanna that was taken (unofficially) during a music video shoot for the song “We Found Love.” In it, Rihanna is wearing the same denim bustier and hairstyle she wears—if only for a few seconds—in the video.
Although Topshop had secured the necessary copyright rights in the photograph from the photographer, Rihanna had not consented to this use of her image. According to a New York Postreport on the lawsuit, she’s not the only one: Topshop sells t-shirts bearing the images of other artists, too.
In the United States, this use most likely would have been a very clear-cut violation of the artist’s right of publicity. Thirty-one states (as well as Puerto Rico) currently recognize the right of publicity as a distinct, protectable property right under common law and/or statute. 1 J. Thomas McCarthy, The Rights of Publicity and Privacy § 6:3 (2nd ed. 2013). Although the specific elements of each state’s cause of action vary, infringement is generally found where defendant has made unauthorized use of some identifiable aspect of plaintiff’s identity in a commercial context causing damage.
Id. at §§ 3.2 and 6.5. Topshop’s top appears to do just that. Considering that Rihanna already has fashion deals in place with Armani and River Island, a competitor to Topshop, she is well aware of the commercial value of her identity.
However, Rihanna could not pursue her claim under any such state law, because Topshop has not sold the shirt in either its New York store or through Nordstrom here in the U.S. Instead, she had to make out a claim under UK law, which does not recognize a right of publicity. Nevertheless, Mr. Justice Birss found that Topshop was liable for “passing off.”
To prevail in a claim of “passing off” under UK law, plaintiff must prove that: (1) she has established a reputation; (2) defendant has misled the public; and (3) plaintiff was damaged. It’s this second element—misleading the public—which can be the most difficult to prove, particularly in a marketplace where images of celebrities abound.
Here, the issue was whether the public was likely to have been misled into thinking that the top had been approved by the singer. Having considered the facts that Topshop is a well-known store, the image was taken from the video shoot and was allegedly similar to images used on the CD sleeve for her album, the top was sold at the same time the video and album were released, and Rihanna had active endorsement deals, the High Court held that a “substantial number” of buyers were likely deceived. Mr. Justice Birss was quick to reiterate that there is “no such thing as a general right by a famous person to control the reproduction of their image.” Loathe to give celebrities false hope, Mr. Justice Birss stated, “[t]he 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.”
Rihanna was seeking $5 million (£3.3 million) in damages, though the High Court did not make an assessment of damages in its recent ruling.
This case points out one of the significant differences between U.S. and U.K. law. Celebrities who wish to protect their valuable rights of publicity are well advised to consult with an intellectual property attorney who is familiar with the various laws and statutes governing rights of publicity and other intellectual property rights.
Grimes LLC attorneys have worked with many internationally renowned celebrities and athletes to protect, enforce and exploit their valuable intellectual property rights.
