Guernsey image rights register points way for Ireland
Irish courts have struggled to fill a gap in image rights legislation
Tottenham Hotspur’s Gareth Bale
Irish Formula One racer Eddie Irvine received damages in the English courts, in 2002, on foot of his image being used by a radio station without his consent. Irvine was portrayed in a doctored photo, holding a radio to his ear carrying the words “Talk Radio”, the precursor to TalkSport.
Irvine successfully argued the common law principle of “passing off” and the court held that the radio station’s advertisement confused the public and falsely portrayed Irvine as endorsing it, and he was awarded £2,000 in damages.
He and celebrities stars have had to apply to the costly High Courts of Ireland and the UK to protect their images using arguments based on unreliable common law principles without being able to rely on concrete legislation. The courts have struggled to fill this “image rights gap”.
To succeed in a claim for passing off, the claimant must prove they have built an image, reputation or goodwill worth protecting and that the public would be confused as to whether the claimant was endorsing the product or not.
In Ireland, in 2001, Olympic gold medallist Mary Peters, who represented Northern Ireland and Great Britain at the 1972 Olympics, sued Ark Life assurance company for using her image without her consent in a promotional campaign. Ark Life ran with the title, “Remember when Mary Peters won Gold?” Her argument was that her reputation had been “pirated”. The case was settled outside of court.
In 2008, Clare hurler Diarmuid McMahon brought a case against the Clare People newspaper for using his image in promotional material without his consent. The case was struck out, reportedly because a High Court action would have clashed with the Clare hurler’s championship campaign. The Gaelic Player’s Association has subsequently spoken up on how the issue of image rights needs to be tackled.
Recent cases include those of Diego Maradona, who successfully sued two Chinese online gaming companies for the unauthorised use of his image, and actress Scarlett Johansson, who is currently suing a French publishing company for portraying in a book an allegedly identical character to that of her own.
There still remains no legislation in Ireland or England that allows a person or company to register their image rights. Individuals enjoy certain privacy rights, and trademarks and designs can be registered, but characteristics and personal traits cannot be registered.
In November 2012, however, the Guernsey parliament approved the Image Rights (Bailiwick of Guernsey) Ordinance and the Guernsey Intellectual Property Office, which opened for business on December 3rd, 2012. It is the world’s first registrable image rights system.
The legislation allows an individual or a company to register just about anything they want with respect to their image, costing from £100 to £2,000.