Some weeks ago, Jamaicans and Barbadians playfully tussled on social media regarding the nationality of internationally renowned artist, Robyn “Rihanna” Fenty. You may recall seeing the hashtag #RIHANNAISJAMAICAN at some point during the exchange. It was, apparently, an attempt by Jamaicans to appropriate the nationality of Rihanna. The word “appropriate” was, of course, being used loosely as otherwise, there may have been some legal implications in a few instances.
There were uses of Rihanna’s image and likeness which, in other contexts could have given rise to tortious liability for passing off or appropriation of personality. As the names suggest, passing off involves “passing off” goods or services as those of another and appropriation of personality involves the unauthorized use of a person’s name, image or likeness. These areas of law protect an individual’s right to exclusively exploit his/her name, image and likeness for commercial gain.
A few commercial entities joined in the fun and created make-believe images of Rihanna purportedly visiting their stores. One image had Rihanna’s entire body cropped from a picture easily accessible on the internet and super-imposed onto another as if she were exiting their store, having presumably shopped there. In the original picture, Rihanna wore a hat with a “NY” logo, while in the edited picture she appeared to be wearing a hat with the “Prizm” brand.
Perhaps one could make the argument that this amounted to a false endorsement. A person who was not aware of the social media frenzy may have thought Rihanna actually visited the store and endorsed Prizm products. The image was that perfect!
Yet another popular clothing store displayed an image of Rihanna purportedly exiting the store after having shopped there. It seems none of these instances may give rise to liability as the uses of the images were not for commercial gain. If we took away the playfulness of the occasion, it is arguable that some legal implications would arise since Rihanna did not consent for her image to be used as it was.
Rihanna has, in the past, sued for the unauthorized use of her image. In 2015, she sued Topshop, which owned and operated retail fashion stores in the United Kingdom. The cause of action for passing off arose from the use of her image on t-shirts which were being sold in Topshop’s stores and on its website. The image was taken of her at the video shoot for her “We Found Love” single. Rihanna alleged that the use was unauthorized and succeeded on her passing off action.
In that case, on a previous occasion, Rihanna had visited Topshop. The post at the time on the store’s twitter account was “Ridiculously excited! @Rihanna is in our Oxford Circus store as we tweet. Ah, wonder what she’ll buy…”
Having considered the facts, the English Court of Appeal dismissed Topshop’s appeal and affirmed the judgment in Rihanna’s favour. It found that the unauthorized use of her image in an “endorsement type” situation amounted to a false representation that she authorized it. The judge was of the view that the public regarded Rihanna as a fashion icon and would have formed the false impression she endorsed the t-shirts. That conclusion was based on Rihanna’s past public association with Topshop and the features of the distinctive image of her on the t-shirts.
The court of appeal however rejected the argument that a celebrity could claim a monopoly to his/her image. Instead, the celebrity must protect his/her image by use of other causes of action, including breach of contract, breach of confidence or passing off. In her case, Rihanna succeeded because the image on the t-shirts gave rise to a misrepresentation to the public that she had endorsed the product/brand.
Unlike the United Kingdom, Jamaica has recognized and applied the tort of “wrongful appropriation of personality” which protects against the unauthorized use of a celebrity’s name, image or likeness for commercial gain. In Robert Marley Foundation v Dino Mitchell Ltd, Justice Clarke accepted that a tort for wrongful appropriation of personality existed under the common law in Jamaica. The Claimant succeeded on its action by proving that Bob Marley was an artist of international renown and that there was an unauthorized use of his image on merchandise described as having “inferior quality”. The claimant also succeeded on a passing off action. The court held that both actions could be maintained at the same time.
Almost two decades later, in 2010, Justice Sykes (as he then was) came to analyse the tort from a different perspective. The claimant contended that the use of her image in a dancehall magazine was unauthorized and breached her right to exclusively use her image. There was no evidence she was a “celebrity”. His Lordship did not agree, however, that the tort was limited to celebrities. Instead, he was of the view that in cases where the claimant is a celebrity that should go to the issue of damages. In essence, the more popular the person, the more money they could have made from potential endorsement deals and, consequently, more damages would be awardable. In the case before Justice Sykes, the claimant failed to address the issue of damages and was consequently awarded only nominal damages of JM$1.
Whether you are thinking of advertising generally or during this Christmas season, it is important to pay attention to image rights issues which could potentially arise. It would be prudent to obtain the consent of the person before using their image in any advertisement campaign.
Litrow Hickson is an Associate at Myers, Fletcher & Gordon within its Litigation Department. He may be contacted at firstname.lastname@example.org or via our website at www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.