CG68450 - Intellectual Property Rights: image rights: image rights in the UK

What are “image rights”?

The standard definition of “image rights” (e.g. as it appears in a typical “image rights” contract for a footballer) is very wide ranging, as follows –

“The legal and beneficial rights and goodwill that subsist in relation to the use, exploitation, reproduction of or in association with or otherwise of the personal attributes of the player including without limitation the name, nickname, initials, shirt number, autograph, caricature, statements, biographies, testimonials, endorsements, photographs, video, film or sound recording, voice, image reproduction and likeness and/or fair likeness or any other means of endorsement or identification, personal appearance or non-endorsement and so forth of the player, together with any relevant registered or unregistered UK and foreign copyrights, trade-marks or design rights, which exist either now or in the future which comprise (whether wholly or in part) any of the matters referred to in this clause.”

“Image rights” in the UK and elsewhere

As a general principle, under UK law there is no such thing as an “image right” or “personality right” because UK law does not recognise the concept of “image rights”.

For judicial authority in support of this statement, see the judgments of Lord Hoffman in the House of Lords and Lord Justice Kitchin in the Court of Appeal in two cases referred to in CG68455.

Many jurisdictions outside the UK recognise “image rights”. Most EU countries have some right protecting commercial use of an individual’s name or image, whilst France and Germany in particular have strong image right and personality right laws. Guernsey recently introduced a comprehensive system for registering image rights. Over 30 States in the USA also have some form of image or publicity right. So where non-UK “image rights” are concerned, it is important to establish the nature of the rights and the relevant jurisdiction.

How does UK law protect a person’s image?

There are four distinct ways in which UK law provides some protection to people who wish to control the use of their image;

(i) Privacy law – there is increasing recognition that the law of “breach of confidence” (often combined with Article 8 of the European Convention of Human Rights) can be used to prevent the publication of information – e.g. used by celebrities to prevent publication of harmful stories about their private life, but this has very limited relevance here;

(ii) Passing-off – a legal claim which requires a person to show that their goodwill has been damaged by a misrepresentation; there is more on this in CG68455;

(iii) Other Intellectual Property Rights – it may be possible to protect certain aspects of a player’s “image” through formal IPR regimes; e.g. intangible assets such as trade-marks are capable of licence or assignment;

(iv) Contract – where there is no identifiable asset capable of transfer from player to another entity, it is possible to put in place legally effective arrangements for exploitation; these arrangements will be purely contractual and, as in Sports Club (see CG68460), are likely to impose a series of obligations under a contract to provide promotional services on the player, in return for payment from the other party.