Regional Conference on Intellectual Property (IP) in the Digital Economy for Small and Medium-sized Enterprises (SMEs), Bucharest, April 18 and 19, 2016

1. I M A G E A N D
P E R S O N A L I T Y R I G H T S
D R A N D R E S G U A D A M U Z , U N I V E R S I T Y O F S U S S E X

2. A P O L O G I E S

3. W H AT A R E
I M A G E R I G H T S ?
• This is not a harmonised
area of law, very specific to
jurisdiction.
• Image rights (personality
rights) is an umbrella term
to define protection of a
person’s personality,
including image, likeness,
reputation, etc.

4. I M A G E R I G H T S
• Right of image
• Right of publicity
• Right of personality
• Passing off
• Unfair competition
• Privacy rights

5. L E G A L D E F I N I T I O N S ( C A N A D A )
• Art 3 Quebec Civil Code: “Every person is the holder
of personality rights, such as the right to life, the right
to the inviolability and integrity of his person, and the
right to the respect of his name, reputation and
privacy. These rights are inalienable.”

6. PA S S I N G - O F F
• Tort in the UK that protects goodwill.
• The is that principle that “nobody has any right to
represent his goods as the goods of somebody else”
Reddaway v Banham.
• 3 elements:
1) goodwill or reputation attached to the goods or
services;
2) a misrepresentation by the defendant to the public;
3) and, damage or the likelihood of damage.

7. R I H A N N A V
T O P S H O P ( 2 0 1 5 )
• Topshop UK sold t-shirt with
Rihanna’s picture. She sued for
passing-off.
• “…the law of passing off is
not designed to protect a
person against fair competition.”
• “Many of her fans regard her
endorsement as important for
she is their style icon, and
they would buy the t-shirt
thinking that she had approved
and authorised it.”

8. R I G H T O F P E R S O N A L I T Y ( G E R M A N Y )
• Probably the strongest level of protection in Europe.
• Art 12 Civil Code: right to one’s name
• Article 22 of the Artistic Authors Rights Act: right of
image.
• Article 1 of the Unfair Competition Act 1909: protection
of commercial use of image.
• Commercial use of image (Marlene Dietrich case, 1999).

9. T E C H N O V I K I N G
• During the 2000 Berlin Love
Parade an Internet star is
born.
• Matthias Fritsch uploaded
video to Internet, but it didn’t
gain traction until 2006.
• Exploded as an Internet
meme that year.
• Fritsch made €10k EUR from
views and merchandise.

10. B E R L I N R E G I O N A L
C O U R T R U L I N G
( 2 0 1 3 )
• Technoviking sues in 2012 for
breach of privacy and breach
of image rights.
• Court failed to consider
privacy, but agreed on image
right violation.
• Injunction forces Fritsch to
digitally remove Technoviking
from video.
• https://vimeo.com/140265561

11. O T H E R C I V I L
A C T I O N S
• Droit à l’image (France)
• ‘portrait rights’ in Dutch
copyright law.
• Commercial use of image
• ‘Cashable Popularity’ in
Holland.

12. R I G H T O F P U B L I C I T Y ( U S A )
• The Right of Publicity can be defined as the right to
control the commercial use of one’s identity. These
usually consist of “name, image and likeness.”
• This is a state law issue, so the law changes from state
to state.
• Has little to do with IP law as such, although there may
be some intersection with copyright, particularly
regarding fixation of images.

13. S I N AT R A V.
G O O D Y E A R T I R E
( 1 9 7 0 )
• Passing-off case against
Goodyear for use of a
look-alike with song similar
to “These boots are made
for walking”.
• No competition between
Sinatra and defendants,
she made records, they
made tires.

14. Z A C C H I N I V. S C R I P P S -
H O WA R D
B R O A D C A S T I N G ( 1 9 7 7 )
• SCOTUS decision where Hugo
Zacchini, the so-called “human
cannonball”, had his performance
recorded and used without his
permission by a news crew.
• The Court recognised Zacchini’s
Right of Publicity and it existed to
provide “an economic incentive for
him to make the investment required
to produce a performance of interest
to the public.”
• Other US cases: Midler v. Ford Motor
(1989) and Waits v. Frito-Lay (1992).

15. K I R B Y V S E G A
( 2 0 0 6 )
• Keirin Kirby (of Dee-Lite
fame) sued SEGA America
for the use of a character
that looks like her in
Japanese game Space
Channel 5.
• Use was considered
transformative and also
freedom of speech.

16. N O R I E G A V
A C T I V I S I O N ( 2 0 1 5 )
• General Manuel Antonio
Noriega was depicted in
several missions in Call of Duty:
Black Ops II.
• He sued for breach of his right
of publicity.
• Court sided with game makers,
considered it as speech
protected by 1st amendment.
• Public historical figures can be
depicted in fiction.

17. L A S T O F U S - E L L E N PA I G E

18. L O H A N V R O C K S TA R ( O N G O I N G )

19. F U R T H E R R E A D I N G
• Lee N et all (eds), “Intellectual Property, Unfair Competition
and Publicity”, Edward Elgar (2014).
• Coors C, “Headwind from Europe: The New Position of the
German Courts on Personality Rights after the Judgment of
the European Court of Human Rights” 11 German Law
Journal 527 (2010).
• Klink J, “50 Years of Publicity Rights in the United States
and the never-ending Hassle with Intellectual Property
and Personality Rights in Europe”, 4 Intellectual Property
Quarterly 363-387 (2003).

20. @ T E C H N O L L A M A
a.guadamuz@sussex.ac.uk