Rihanna is planning to sue Topshop. The issue? Topshop sold a Tee featuring her photograph taken from her video for “We Found Love”. The Tee flew off the shelves. However, Rihanna says that she never gave permission to Topshop for her image to be used. Her claim is alleged to be for £3 million.
This news is likely to cause concern for brandowners and fashion retailers who use images of celebrities to sell their products sometimes by using images on products but more often by showing celebrities wearing their products. Even if you have paid for the copyright in the image can you still be separately liable to the celebrity? Possibly.
In the UK (unlike in the US) there is no separate “claim” for image or personality rights. A celebrity will therefore need to show that the activities infringe a pre-existing right such as passing off or breach of confidence. So what is the story with Rihanna?
It is increasingly common for celebrities to create ranges for stores and the public have come to expect ever closer connections between celebrities and fashion brands. Similarly, product endorsement has become more prevalent. In 2003 the “reasonable endorsement fee” awarded by a UK Court in a case involving Eddie Irvine was £25,000. The “going rate” in 2013 for an international star such as Rihanna is likely to be far higher – potentially with at least one extra 0!
Rihanna will be concerned that fashion retailers and brands using her image without her consent will not only lower the rate that she can obtain, but also remove the control she has over her image. Celebrities, particularly A List, maintain their position by guarding their mystique.
The position with the use of photographs of celebrities wearing products is also uncertain. In one sense you are simply stating a fact – this person wore this product. This will be particularly the case, where you didn’t even send it to them – they saw it liked it and bought it. However, this may not stop you being contacted by their “people”. By displaying photos of the celebrity wearing your products, you are cashing in on the popularity of that celebrity.
It is a question of balancing the risks – are members of the public likely to think from seeing a photograph that the celebrity is connected to the creation of the products or is being paid to endorse them?
It will always be a question of fact. But the way that you present them and the wording used can limit or increase your exposure.