Bones of contention
At this point, the lay observer will probably think “what exactly will be covered by Guernsey’s new law?” This is a simple question which yields a complex answer, since what we are asking is the extent to which an individual can be said to “own” the various manifestations of their image. As touched on previously, it is not just visual representations of the star in question which may be covered, but potentially a whole range of other defining characteristics. As such, stars may try to register and license use of catchphrases like John McEnroe’s “You cannot be serious!” “Image rights will cover any distinctive attribute or indicator of personality and will extend to characteristics and expressions and so yes, in theory, it could get as granular as a celebrity’s distinctive hairstyle,” explains Gray. However, “more realistically it’s likely just to be key images.”
It hardly needs to be said that the extent to which a person can be said to have the rights over an everyday phrase or a type of haircut may well cause interesting legal battles. A lot depends on how granular celebrities are willing to get to protect the various elements of their recognizability. Given the often very large sums they earn from endorsements and the like, one suspects they may want to get very granular indeed.
Here, Romer concedes that Guernsey’s new law may be about to create a lot of work for lawyers internationally, but while the legislation may prove pretty contentious in practice, the principles behind seem relatively commonsense.
In essence, Guernsey is trying to “separate out the individual from their image right, put a statutory framework around that and license it”, Romer explained. Therefore, when an individual feels that some part of their image has been hijacked the basic question will be has the offending party aimed to exploit a defining characteristic of that individual for commercial benefit?
This leads us to the thorny issue of press freedom, and whether litigious celebrities will be able to use the new legislation to more zealously guard their privacy. Here, Romer is absolutely clear: Guernsey’s image rights legislation is in no way intended to impede the freedom of the press; nor will it apply to fair dealing exemptions concerning an individual’s image.