Ex F1 driver Eddie Irvine appealed against his measly £2,000 damages award for TalkSport’s unauthorised use of his image in its advertising.
Topic: Personality rights
Who: Eddie Irvine and TalkSport Limited
When: April 2003
Where: Court of Appeal, the Royal Courts of Justice, London
Previously on marketinglaw.co.uk we reported on the first instance judgment of Mr Justice Laddie in this case. It involved the use by TalkSport Radio for promotional purposes of a digitally altered photograph of (then) Formula One racing driver Eddie Irvine. Mr Irvine's permission was not obtained. The original photograph was of Eddie speaking on a mobile telephone. The digitally altered version changed the mobile telephone to a transistor radio with the TalkSport brand emblazoned across it. The promotion was in respect of TalkSport's radio coverage of Formula One races and the photograph was part of a promotion pack sent to under a thousand journalists.
Eddie sued TalkSport radio for passing off and the first instance judgment was in his favour. However, the damages awarded were only £2,000, and since TalkSport had previously paid into court a sum higher than this, Eddie ended up having to pay his own costs of the action and TalkSport's costs from the point at which they made the payment in. This probably left him behind to the tune of well over £100,000. Perhaps not surprisingly, Eddie decided to appeal on the amount of damages, whilst TalkSport appealed against the finding that they had committed a passing off.
There never seemed to be any doubt in the Court of Appeal's mind that TalkSport were liable for passing off and their cross appeal failed. On Eddie's appeal on quantum, the Court of Appeal agreed with the first instance Judge that what TalkSport could afford to pay Eddie had they sought his consent was not relevant. The correct approach, the appeal judges said, was for the claimant to adduce evidence which would guide the court on what would have been a reasonable endorsement fee in the case.
This evidence may consist of the usual practice, as regards royalties, in the relevant trade or analogous trades; perhaps by way of expert opinion expressed in publications or in the witness box. It is also possible that the court might take into account of any other endorsement deals entered into by the claimant and look at the fee which in those cases had been arrived at by means of a free bargain between the claimant and the marketer concerned. The objective was to establish a reasonable endorsement fee which on a balance of probabilities TalkSport would have had to pay if they had done things properly and approached Eddie for consent.
On these aspects, the unchallenged evidence of Eddie was that in 1999 his minimum fee for an endorsement would have been in the region of £25,200 – £31,500. This was supported by evidence of endorsement fees which he had in fact negotiated in 1999, none of which was worth less than £25,000.
The first instance judge decided to ignore these cases, but the Court of Appeal took a different view. They saw no basis for doubting the truth of Mr Irvine's unchallenged assertion that he would not have signed an endorsement deal with TalkSport for less than £25,000. They also felt it was perfectly legitimate to take into account the other deals that Eddie had done in 1999. In this context, the first instance judge did appear to accept that at the relevant time Mr Irvine "would not have bothered to get out of bed to give an endorsement of TalkRadio". The appeal judges also questioned Laddie J's rejection of the expert evidence that had been produced at the first instance trial, which supported significantly higher figures than the £2,000 eventually awarded.
In conclusion, the Court of Appeal held that the "unchallenged evidence" led "ineluctably to the conclusion that TalkSport would in all probability have had to pay at least £25,000 in order to enable it to do lawfully that which it did unlawfully". In the circumstances a £25,000 damages award was substituted for the original figure of £2,000, with TalkSport also ordered to pay a contribution to Irvine's costs, assessed at £250,000, and will also have to pay all its own costs.
Why this matters:
When we originally reported on the first instance judgment in this case, we expressed the view that it was something of a victory for the marketing world. The finding of "passing off" against TalkSport was hardly surprising given the context, whereas the £2,000 damages award was miserably low given all the relevant circumstances, and gave marketers considerable ammunition in seeking to negotiate endorsement fees down.
This appeal judgment changes that position significantly and puts us back into the real world. The summary rejection of TalkSport's appeal on the question of liability for passing off only serves to underline the need to obtain consent in circumstances like this. The £25,000 damages figure is generally much more in line with the sort of figure one might have expected somebody of Eddie's stature at the relevant time to command for this sort of usage.