Fame and fashion go hand-in-hand. Designers frequently use celebrities to showcase their clothing, through ‘gifting’, collaborating on lines or endorsement; celebrities boost their profiles by associating with the right brands – it seems like a win-win situation. These link ups have had major successes with the likes of Kate Moss and Topshop, David Beckham and H&M, and Kanye West and Louis Vuitton. But problems can arise when fashion brands capitalise on celebrities without their permission.
Not so easy
Peter Fonda, star of 60s film “Easy Rider”, found himself in this situation. Italian fashion brand Dolce & Gabbana used an iconic image of him on a t-shirt without his permission and he is now suing the fashion house and retailer Nordstrom for $3 million. Fonda claims he “suffered injuries to his peace, happiness, feelings, goodwill, reputation, image, loss of fair market value of his services, and dilution of his current and future publicity value”, due to the sale of the t-shirts. A celebrity’s personal brand shapes public perception, and is carefully cultivated to position them to their fans. The use of Fonda’s image without his permission removes his ability to control his personal brand, which has the potential to damage his reputation – both in the eyes of the public and with other brands he is associated with.
In the US, Fonda’s name and image are protected under Personality Rights, which allow him to prevent others from commercialising on them without his permission, and negotiated compensation through royalties. However Personality Rights do not exist under UK law, which is an issue of contention in light of a recent law suit against Arcadia Group’s Topshop.
UK law lags behind
Rihanna is suing Topshop for using an image of her on a t-shirt without her permission, and is seeking $5 million in compensation. Topshop also called the t-shirt ‘Rihanna tank.’ Although this appears to mirror Fonda’s case, Rihanna faces further complications due to the antiquity of UK law in this area. Topshop claim it entered into a licensing agreement with the photographer, who, under UK law, is the legal rights holder of the image, thus having the legal impetus to sell and distribute it. This line of argument makes Rihanna powerless over the use of her own image.
Rihanna has taken her legal battle to the London High Court, arguing that Topshop are “passing off” the t-shirt as legitimate Rihanna merchandise, which is misleading customers. They are also commercially benefitting from her celebrity status. It is also possible that sales of Topshop’s Rihanna t-shirt conflicted with her contract to design clothes for high street competitor River Island. Following a precedent set by Formula 1 star Eddie Irvine vs. talkSPORT Radio, in order for Rihanna to gain compensation she must prove both her reputation and that a significant proportion of the market would think she had endorsed the product.
Dilutes other endorsements
Whilst Peter Fonda and Rihanna’s unauthorised branding didn’t necessarily negatively impact on their personal brands, the use of illicit celebrity endorsements can tar a celebrity’s public image and dilute the value of other endorsements. Actress Catherine Zeta-Jones’ image was unknowingly being used to advertise a strip club in Nevada, whilst she simultaneously launched high-end brand Elizabeth Arden’s new fragrance. Jones sued the strip club and barred them from using her image, as they were defaming her personal brand and Elizabeth Arden’s. Had she failed to act her public reputation could have been tarred, negatively affecting her future endorsement earning potential.
In an increasingly media driven society, celebrities are treating their personal image much more like a brand. Control is therefore imperative, but when UK law does not protect the right for a celebrity to solely “market or licence the marketing of [their] own character,” musicians like Rihanna have a fight on their hands to claim royalties. With her case heading to the High Court a new precedent could be set, and the UK could follow in the foot-steps of the US and introduce Personality Rights.
Stuart Whitwell is joint managing director at Intangible Business
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