Is the first Image Rights case in English legal history?

Court of Appeal dismisses Topshop’s appeal in Rihanna passing off case

The Court of Appeal this afternoon handed down its judgment in Rihanna’s action against Topshop for passing off and upholded the High Court’s decision in favour of Rihanna.

On first glance of the facts (Topshop was selling t-shirts using an unauthorised photo of Rihanna taken during a video shoot for her song “We Found Love”), one could be forgiven for thinking that case might be a development in favour of celebrities having the right to protect their image in the UK. However, on closer inspection this case is a classic passing off action, and as the Court of Appeal stressed in its decision today, the law remains in the UK that there is no specific “image right” or “character right” available to a celebrity to control the use of his or her name or image.

The Court of Appeal found that “the claimant in a case of this kind must make good his case on the evidence. He must show that he has a relevant goodwill, that the activities of the defendant amount to a misrepresentation that he has endorsed or approved the goods or services of which he complains, and that these activities have caused or are likely to cause him damage to his goodwill and business”.

In upholding the High Court’s finding in favour of Rihanna, the Court of Appeal found that the following two factors were particularly important in this case:

(1) The nature of image used by Topshop: the image used was taken during a photoshoot for one of Rihanna’s video-clips, and closely resembled the album cover of Rihanna’s album at the time the t-shirts were being sold;

(2) Rihanna has an association with Topshop, and Topshop had gone to considerable lengths to emphasise that relationship – for example, in the past Topshop has run a competition draw for a shopping trip with Rihanna and has sought to publicise occasions on which Rihanna wore or chose Topshop items.

Because of the those factors, the Court of Appeal upheld the finding that the public could be deceived into buying the T-shirt, wrongly believing it was authorised by the Barbadian singer, and therefore Topshop was liable for passing off.

Contact Erica Henshilwood
erica.henshilwood@smab.co.uk
020 3206 2700