Guernsey image rights register points way for Ireland
Irish courts have struggled to fill a gap in image rights legislation
The rationale behind the legislation is that, firstly, one should have control over one’s image and how it is used and, secondly, one should have the capacity to earn a livelihood from that image. It allows for protection of an image of a natural person (living or deceased in the past 100 years) and also applies to corporate images, fictional characters and joint images, such as Jedward. Registrable rights include defining characteristics such as appearances, voices, gestures, expressions, faces, photos, cartoons, videos, signatures and distinctive personal attributes or characteristics of personality.
Take, for instance, English Premiership footballer Gareth Bale’s signature heart-shaped goal celebration (the subject of a current trademark application in England and the EU), where he gestures a heart shape every time he scores a goal. This can be registered as an image right in Guernsey without the evidential requirements of a trademark application. The holder of the image rights can then sell and license their rights as a legal commodity which they previously could not. It will add value, protection and clarity to their image and can also be used for succession planning and tax saving schemes.
Since its inception, the Guernsey Register has received applications from personalities such as British tennis player Heather Watson, DJs Tiesto and Afrojack and Greek classical guitarist Elefheria Kotzia. But the potential to register does not apply only to celebrities and sports stars, as the legislation has tried to make a distinction between a person’s day job and the value of their image. For instance it recently had applications from the owner of a London hair salon and an English town councillor, who each wished to protect and place a value on their images.
The question of whether any judgment obtained on foot of an image rights infringement can be enforced in Ireland falls under international law and the international enforcement of judgments. Guernsey has statutory reciprocal enforcement links with several jurisdictions including England and Wales, Scotland, The Netherlands, Italy and Israel. Ireland is not on this list. However, because Ireland is a common law jurisdiction similar to Guernsey, it is possible any Guernsey judgment obtained may be enforceable here.
Enforcement aside, a court may query the value of one’s image if one did not register one’s rights in the only such register in the world. The US and Canada have implemented certain image rights and privacy laws to cater for high-value image-rights commodities. Irish and English law is out of touch with modern commercial realities when it comes to image rights and Guernsey may offer a welcome opportunity to those who value their image rights.