A reference to the High Court case of Fenty –v- Arcadia may not ring any bells, but mention of Rihanna –v- Topshop, pop megastar and clothing giant respectively, certainly gets people talking – and not just celebrity magazines.
Topshop had sold substantial numbers of t-shirts bearing Rihanna’s photograph. Whilst they had obtained permission from the photographer, they had not obtained the pop star’s consent to using her image.
In England (unlike America) there is no specific law that protects image rights. The only option available to celebrities is to pursue a claim in passing off. This involves providing evidence that the celebrity has a reputation, that the use of their image is likely to cause customers to be confused into thinking the celebrity has authorised that use and that damage has been caused.
Rihanna argued that Topshop had misled customers into thinking she had endorsed the use of her image and that this confusion had damaged her reputation. The Court agreed that a substantial number of purchasers would have a false belief it had been approved by the singer. The Judge said that “for those persons, the idea that it is authorised will be part of what motivates them to buy the product. I am quite satisfied that many fans of Rihanna regard her endorsement as important. She is their style icon. Many will buy a product because they think she has approved of it. Others will wish to buy it because of the value of the perceived authorisation itself. In both cases they will have been deceived. This would clearly be damaging to Rihanna’s goodwill”.
The Court’s decision was based on the combination of Topshop’s reputation on the high street, the fact they are known for using celebrities to endorse their clothing ranges, the nature of the image used (it had been taken on the set of the music video for ‘We Found Love’) and Rihanna’s status as a trend-setter in the fashion world. The Court concluded that each of these factors increased the likelihood of the public assuming that the t-shirt had been authorised by Rihanna.
The Court has not as yet made an award of Damages following the decision. Topshop had offered to settle for $5,000, however Rihanna had claimed over £3million. Topshop has indicated it intends to appeal the decision and said that “the fact that Rihanna has shopped, worn and had a relationship with Topshop for several years appears to have been detrimental to our case. There was no intention by Topshop to create the appearance of an endorsement or promotion”.
Whilst the decision is an interesting one, the Court made it clear that cases of this nature will be fact specific and “the mere sale by a trader of a t-shirt bearing an image of a famous person is not, without more, an act of passing off”.
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