The need for more comprehensive image rights legislation has been brought to the fore by many high-profile cases in recent years. One of these was a dispute between former Formula 1 racing driver Eddie Irvine and TalkSPORT where the latter made use of a digitally-altered photograph of Irvine apparently endorsing its brand. The UK Court of Appeal eventually awarded Irvine £25,000 (up from the original award of £2,000 damages which the judge in the original case called a "reasonable endorsement fee"), but what the case really revealed was the inadequacy of current UK law.
In the Irvine case, the UK courts upheld that there’s no such thing as an image right per se, explained Jason Romer, the managing partner at law firm Collas Crill and one of the masterminds behind the new legislation. Instead, when bringing such claims, high-profile individuals have to rely on a “rag bag” of other rights such as false endorsement, defamation and privacy, he continued.
This was echoed by Elaine Gray, counsel at Carey Olsen and another expert instrumental in the drafting of the Image Rights (Bailiwick of Guernsey) Ordinance, 2012. “Up until now high-profile individuals like Max Mosley and Naomi Campbell had to rely on a real ‘patchwork quilt’ of legal remedies,” she said (F1 supremo Mosley and supermodel Campbell have of course been embroiled in high-profile intrusion of privacy cases in recent years). The IR Ordinance will “bring a degree of clarity which wasn’t there before,” Gray continued.
As surprising as it may be in this world of celebrity endorsement, the lack of clarity on image rights found in the UK courts is also the case for regimes around the world, Romer added, leaving more innovative jurisdictions to step into the breach. As well as Singapore, Jersey, the British Virgin Islands, Luxembourg and even Jamaica are all IFCs said to be interested in enhancing their IP regimes, but it is Guernsey which is set to steal the march on its international peers in introducing this “world first” law, in all likelihood by the end of this year.
Moves to update Guernsey’s IP regime stretch back to 2002, when the island was granted the right by the UK Privy Council to amend its IP legislation. Fast-forward 10 years, and the island is now poised to enact into its statue books (with no further UK approval required) a new law which will make it possible for high-profile people to register an image right for their name, image or likeness, or indeed any number of other characteristics. In fact, the extent to which certain signifiers such as a unique hairstyle, outfit or even a catchphrase can be protected is a bone of contention – of which more later.
For Romer, Guernsey’s new image rights legislation is an entirely natural evolution of the island’s regime. “We [Guernsey] are good at looking after people’s assets, and image rights are just another asset,” he said, adding that such an image rights law is actually sorely needed because “we live in a celebrity-mad world - we live in a world where people need to protect their image rights.” In today’s age celebrities’ images or defining characteristics are “bankable” and need to be protected in the same way as inventors needed patents during the industrial revolution, he explained.