As with many aspects of our law, Jamaica’s intellectual property laws have its roots in UK legislation. Therefore like the UK, we have statutes that protect copyright, designs, trade marks and patents. Again like the UK, we look to the common law, the law based on decisions of the court, to protect a person’s image.
Whereas statutory privacy rights in the UK, derived from the European Convention on Human Rights and Fundamental Freedoms, give sporting figures and other celebrities in that jurisdiction added protection, in Jamaica athletes still have to rely on the common law to protect their images. This protection is limited.
In 2003, the English Court of Appeal acknowledged that the tort of passing off, a common law right of action, could be used by a well-known person to protect his/her image from unauthorised use in the case Irvine v Talksport. As the name suggests, passing off involves the infringer passing his goods or services off as the goods or services of another. This is usually done by applying the innocent party’s name or logo to the infringer’s product.
The above case concerned a radio station that had manipulated a photo of a famous racing driver, Eddie Irvine, so that Irvine in the photo appeared to be holding and listening intently to a radio with the words “Talk Radio” written on it. The radio station then used this doctored photo in advertising material that promoted their services. Irvine had not given permission for his image to be used by Talk Sport and sued.
The courts found that Irvine had built up valuable goodwill and reputation in his name and image, these being essential elements in proving passing off. This reputation and goodwill had been accompanied by an increasing demand for his “endorsement” of particular products or services.
The other element he needed to prove was a misrepresentation by the radio station, that is to say, that the actions of the defendant gave rise to a false message which would be understood by its potential customers that its goods have been endorsed by Irvine. The Court found that the image used on the advertising material was a clear representation that Irvine endorsed Talk Radio and as this representation was not true, they gave judgment in Irvine’s favour.
While this case correctly addresses false endorsements, it does not address situations in which a celebrity’s name and image are used and no endorsement is claimed, for instance if a look-alike model is used or if negative or laudatory advertising is employed.
What comes to mind also are cleverly devised congratulatory advertising that does not claim or imply an endorsement but uses images and names of celebrities to attract the public’s attention as we have seen in the press since our athletes’ historic triumphs in the Beijing Olympics.
In the final analysis, the remedies offered by passing off are open only to well known persons as it requires significant goodwill in your name and reputation. Surely all persons, not just celebrities, should have enforceable rights over their images. Defamation laws give some protection but do not apply to purely commercial use that cannot be described as derogatory. Also, breach of confidence actions only protect images obtained in situations where confidentiality would be expected.
Because of these shortcomings of the common law, wider reaching laws are needed to protect the image and publicity rights of Jamaican celebrities as well as that of the ordinary citizen.
Worthy of note is the Sunset legislation enacted during last year’s Cricket World Cup that prohibited the unauthorised use for commercial purposes of CWC 2007 images including the image of any squad member. If the legislature can acknowledge, albeit temporarily, that the exploitation of a competitor’s image is worthy of statutory protection then laws that will protect all well-known persons on a permanent basis should be acceptable.
To protect the images of all persons, we can look to the UK Data Protection Act which requires anyone who handles personal information to comply with certain important principles, giving individuals a wide range of rights over their personal information including access, compensation and the prevention of processing.This Act allowed the actor Ewan McGregor to sue a press agency that had obtained unauthorised pictures of his children taken while the family was on holiday. It facilitated a well-known disc jockey suing a newspaper over unauthorised pictures of her sunbathing while on her honeymoon. The model Naomi Campbell also obtained redress against the unauthorized use of her image.
This Act allowed the actor Ewan McGregor to sue a press agency that had obtained unauthorised pictures of his children taken while the family was on holiday. It facilitated a well-known disc jockey suing a newspaper over unauthorised pictures of her sunbathing while on her honeymoon. The model Naomi Campbell also obtained redress against the unauthorized use of her image.
It is time for our law makers to consider similar legislation in Jamaica giving all persons rights over their images rather than having to rely on the Courts to extend the reach of existing common law principles.
Roxanne Miller
Attorney-at-Law
DunnCox
48 Duke Street
Kingston
Roxanne.Miller@dunncox.com