Persons including actors, musicians, athletes, social media influencers and other celebrities have earned millions from advertising and endorsement deals. In fact, in January of this year, Tramar Dillard, American rapper better known as Flo Rida, was awarded US$82 million in a lawsuit against energy drink company, Celsius Holdings Inc., for breach of an endorsement contract. In addition to the law of contract, and depending on the jurisdiction, individuals can rely on common law principles such as passing off and misappropriation of personality to receive compensation for the commercialization of their image, name or likeness. It may even be that such individuals do not have to be celebrities to cash in on such commercial exploitation of their character.
In considering local laws on this point, and in the true spirit of Reggae Month, mention is made of the 1994 Jamaican Supreme Court case between the Robert Marley Foundation and Dino Michelle Limited. The defendant company had engaged in the unauthorized production of t-shirts depicting Bob Marley’s image. The court held that the tort of passing of was established in that case, for reasons including that goodwill is attached to Bob Marley’s name and likeness in connection with the business of the plaintiff, Bob Marley’s successor-in-title, and the t-shirts constituted a misrepresentation, misleading members of the public into believing they were endorsed by the plaintiff. This was likely to cause damage to the plaintiff’s goodwill or business. The court then went further to acknowledge the tort of misappropriation of personality as a separate basis on which the defendant breached the plaintiff’s rights, asserting that property rights attach to not just the goodwill in a business, but to the goodwill in a celebrity’s personality. As a result, such property rights are violated where indicia of a celebrity’s personality are appropriated for commercial purposes.
By the year 2004, in another Supreme Court case (Georgia Messam v Morris and Williams), the court made reference to the Bob Marley case mentioned above and accepted that the tort of misappropriation of personality exists in Jamaican law. However, this case expanded the boundaries set by the Bob Marley case, as the judge expressed the view that misappropriation of personality can be committed even against a person who is not famous or is not a celebrity, if such person’s image is exploited commercially without his or her consent. Notwithstanding, it is uncertain whether such sentiments would be upheld today in the Supreme Court or in Jamaica’s final appellate court, the Judicial Committee of the Privy Council based in the United Kingdom.
UK courts have been maintaining that there is no “image right” or “character right” in English Law, on which a person may rely to control the use of his or her name or image. As such, in 2015 when pop star Robyn Fenty, better known as Rihanna, made a claim in the UK Court of Appeal against Arcadia Group Brands Limited for selling t-shirts displaying her image, she had to rely on the tort of passing off, the elements of which the court found were present in that case. The sale of items bearing a recognizable image of a celebrity does not automatically amount to passing off, but the court found that in the circumstances of the case, including that there was prior collaboration between Rihanna and the store distributing the garments, it was likely that persons would be convinced the t-shirts had Rihanna’s approval and endorsement. The court was satisfied that Rihanna has a reputation and goodwill in connection with her business activities, and the use of her image on the t-shirts was a misrepresentation, which caused damage to such goodwill. Having been able to rely on the traditional cause of action based on the tort of passing off, there was no need for Rihanna to rely on image rights which are not traditionally recognized under English Law.
The rulings of the UK Court of Appeal are not binding in Jamaica, as this is a separate court from the Judicial Committee of the Privy Council, but these rulings are generally persuasive in this jurisdiction.
In any event, where there is doubt, it is better to err on the side of caution, by obtaining a person’s consent before commercializing his or her image or likeness. Moreover, even where consent is granted, a breach of the terms of the contract can lead to a major pay out, such as in Flo Rida’s case mentioned above.
It would therefore be prudent to seek legal advice when dealing with the commercial exploitation of a person’s name, image or likeness, whether that person is a “name-brand” personality, or a personality who is “not so name-brand”.
Kimberley Brown is an attorney at Myers, Fletcher & Gordon and a member of the firm’s Commercial Department. She may be contacted at kimberley.brown@mfg.com.jm or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.
