CG68435 - Intellectual Property Rights: image rights in foreign jurisdictions

Many jurisdictions outside the UK recognise “image rights” as property rights rather than personal rights, which makes the image rights assets for the purposes of Section 21 TCGA1992, see CG11700P. The legal position varies greatly from one jurisdiction to another, so it is not possible to offer general guidance.

Most EU countries have some form of right that protects commercial use of an individual’s name or image; France and Germany in particular have strong image and personality laws. Over 30 US States acknowledge some form of image or publicity right - in some States the right ends at death, in others it follows to the expiry of the term of the copyright and in others it is perpetual. Canada recognises the right to unlawful appropriation of personality whilst in Australia, which like the UK has no image or publicity rights law, the courts have developed the law of passing-off to something akin to a right of image and personality.

In 2012 Guernsey introduced legislation which provides protection for registered image rights. Any natural or legal person, including two or more persons who are perceived to be intrinsically linked (e.g. a well known entertainer partnership like Ant and Dec) or are perceived to be linked in common purpose and who form a group (e.g. a pop group) can register as a registered personality. A registered personality is a legal property right (similar to a trade mark) which can be assigned and licensed like a trade mark. The proprietor of the registered personality has exclusive rights in the images registered against or associated with that registered personality.

Consequently if a celebrity claims that he has assigned “image rights” protected by a non-UK jurisdiction to an image rights company, it may be appropriate to identify the asset in that jurisdiction as image rights and not goodwill. However, such cases should always be referred to the Capital Gains Technical Group before coming to any decision over asset identification.