Rihanna has successfully sued Topshop (a retail chain) for passing off in the UK High Court. The facts were very simple – Topshop used a photo of Rihanna on t-shirts, but it didn’t bother to get the artist’s consent. The court had no hesitation in finding that a significant number of consumers would mistakenly assume that Rihanna had endorsed the product. This clearly damaged Rihanna’s goodwill and represented a loss of control over her reputation in the fashion sphere.
The decision came as no surprise. There have been similar decisions in the UK – in one, a Formula One driver successfully sued a radio station that had used a photo of him in a print ad, with the court accepting that people might well believe that he had endorsed the station. In cases like this the court should consider various factors, for example: the public is more likely to assume endorsement in the case of a film star or sportsman than in the case of someone like Desmond Tutu or the Dalai Lama; the public is more likely to assume endorsement in the case of a live celebrity than a dead one (where the estate would obviously do the endorsing); and the public is more likely to assume endorsement where a celebrity’s photo appears on clothing or perfume than where it appears on a poster. The fact that Rihanna is very big right now, and the fact that she has apparently been involved in the world of fashion before, were clearly relevant factors.
It’s likely that the Rihanna case would have gone the same way in South Africa, where we also have a law of passing off based on goodwill and a likelihood of confusion. But in South Africa the star would have had further options. We have a right to identity, where consumer confusion doesn’t come into the equation. In one case a former Miss SA, Baetsana Khumalo, successfully invoked her right to identity against Cycle Lab, which had used her photo in an ad without consent. This right to identity is similar to the publicity right enjoyed in the USA – there was recently a case where the estate of Albert Einstein relied on this right. The UK does not recognize identity or publicity rights.
There are other options too. The ASA Code says that you can’t interfere with a celebrity’s right of privacy or unjustifiably exploit their image by using their photo without consent. There may even be a case of copyright infringement, but only if the celebrity actually owns the copyright in the particular photo (which is unlikely). Lastly there may be a case of trademark infringement if the celebrity has registered their photo or image as a trademark for the particular goods. A celebrity should in fact seriously consider registering their photo or image, because a trademark infringement case is always far simpler to bring that a passing off case.