IP Insight – Things Get Scary for Tesco with Mel B Image Complaint
IP Insight is a series from Virtuoso Legal, the intellectual property specialists. This piece concerns a recent complaint made by “Mel B” in relation to the use of her image in a recent publicity campaign by Tesco.
An unlikely complaint this week from Mel B has once again shone a light on the murky legal situation surrounding image rights (or lack of) within the United Kingdom.
This latest controversy has typified the confusion surrounding the current state of affairs, in which legitimate copyright licencing is offset against a web of associated legal rights which currently provide the only route of action in the UK for individuals who wish to act against the unauthorised use of their likeness.
Whilst numerous other international jurisdictions have well-established rights of publicity, the legal situation in the United Kingdom is somewhat more convoluted.
Image rights are essentially an individual’s proprietary right in their personality, bestowing the right to prevent unauthorised use of their likeness, name and personality. The underlying concept is the principle that individuals should be at liberty to commercialise their own image/personality as they see fit.
However, due to a lack of any specific statute or precedent dedicated to image rights within the UK, individuals wishing to protect their right to use their image must look to alternative intellectual property rights in order to assert a degree of control.
In lieu of UK image rights, alternative legal instruments
Many celebrities now adopt the method of registering their names and likenesses as trade marks in order to maximise their value as a commodity. Such luminaries adopting this approaching include David Beckham and Sean Connery in recent years. Alan Shearer famously went as far as to register his own image in relation to a variety of clothing goods in 1996.
However, as the Court of Appeal surmised in Elvis Presley Enterprises v Sid Shaw Elvisly Yours , there is ‘no free-standing general right to character exploitation enjoyable exclusively by a celebrity.’ As such, there is no explicit rule that the person seeking to register a famous persons image or name needs to be the individual concerned or their representative.
Alternatively, following the ruling in Edmund Irvine & Tidswell Ltd v Talksport Ltd, passing off can also provide a cause of action in instances where an individual’s image is being used without their permission. In order for any prospective claim to succeed, the classical trinity of goodwill, misrepresentation and damage must be satisfied.
However, the scope was significantly widened by the decision in Robyn Rihanna Fenty v Arcadia Group Brands Ltd, in which the Court ruled that the mere loss of control of one’s image could prove sufficient in terms of damage.
The issue which can arise, as aptly demonstrated in this instance, is that relying on rights which are not specifically tailored to purpose can lead to irregularities and uncertainty. In their defence, Tesco claim to have purchased the image for commercial use from Getty, which would ordinarily satisfy the legal measures necessary to obtain free use of an image.
The present instance
However, in this instance, Tesco is also obligated to obtain permission of the individual concerned. This is due to the fact the purchase of the image only addresses the issue of copyright, it does not protect against any subsequent action by way of passing off.
Whilst the situation between Mel B and Tesco appears to have been resolved amicably through Tesco removing her image from the campaign, it should act as a lesson for those who seek to utilise celebrity endorsement to ensure that they are fully aware of their legal footing beforehand. In this instance, perceived association with Tesco might have led to a successful claim for passing off.
Our Insight – Mel B x Tesco
Celebrity endorsement can be invaluable when done effectively, famously the Chanel campaign featuring Nicole Kidman increased revenue by 16%, without any actual change in fragrance or packaging. However, such arrangements can easily backfire on the basis of ill preparation and legal naivety. Where the legal landscape is so volatile, seeking specialist advice can be the difference between a marketing scoop and a PR disaster.
Caution and a comprehensive approach to securing the permission and associated legal footing for use of images containing likenesses of celebrities is vital. The outcome, in this case, is somewhat of an embarrassing moment for Tesco, whose recent PR has suggested a turnaround of fortunes.