In a UK first, personality endorsement rights are now judicially recognized. But the damages awarded in the Eddie Irvine/Talkback case gave advertisers an unexpected boost.
Who: Eddie Irvine and Talksport Limited
When: March 2002
Where: Chancery Division of the High Court, London
Kelvin McKenzie's Talksport radio channel sent out a mailing promoting its live Grand Prix coverage. One thousand packages went out to journalists. Apart from the typical Kelvin touch of a pair of shorts with the automotive type of skid mark on the back, the package also contained a brochure. This featured photos of various Formula One drivers including Schumacher the elder, Mika Hakkinen and Eddie Irvine. Eddie appeared twice, once in a small podium shot amongst the two other lucky top three drivers in a particular Grand Prix and again in a larger shot featuring just Eddie. Here a mobile phone Eddie had been holding to his ear in the original photograph had been digitally replaced with a transistor radio carrying a large "Talksport" logo, making it look as if Eddie was intently listening to a Talksport broadcast.
Very funny, but Mr Irvine was not amused. He sued for the closest thing UK law has to what might protect a personality right, the quaintly titled law of passing off. Not so quaint was the judge on the bench at trial, Mr Justice Laddie, one of the new breed of Chancery judges who have heard of sport, sponsorship and endorsement.
Eddie needed this, in fact he needed all the help he could get. This was because, unlike the judicial denizens of the courts of Australia, the US and most of the rest of Europe, the UK bench had hitherto refused to explicitly recognise anything so grubby as a right to make money from allowing one's persona to be associated with a product.
Now all this was to change. With refreshing worldliness, Laddie J quickly got to grips with the differences between endorsement, sponsorship and merchandising (leaving definitions of them in his wake that are sure to be intoned by media lawyers for years to come). Here, he said, we were dealing with the species of personality right called "endorsement", and then came the defining moment. With one bound, the English High Court judiciary broke free of the 19th Century. With breathtaking bravery Laddie J felt the court could "take judicial notice of the fact that it is common for famous people to exploit their names and images by way of endorsement".
From there it was Eau Rouge all the way for Eddie. Though the judgement against Talksport was dressed up as just another application of good old passing off, there was the inescapable feeling that at long last, a fully fledged "personality right" had finally arrived. However, there was a sting in the tail for “Irve the swerve”, as we explain below.
Why this matters:
No more are media lawyers doomed to giving clients verbose and disbelieved warnings that although no clear UK judgement confirmed it, advertising use of well-known personalities without their permission might give rise to legal difficulty. And no more were personalities and their agents and lawyers going to be cowed by advertisers learning heavily in defence on the absence of any clear legal authority for the proposition that a person can prevent the unauthorised use of his or her name fame or likeness in advertising.
There was a twist in the tail, though. The judge only awarded Eddie a paltry £2,000 damages. This was bad news for Eddie. Not only because the figure was miserably low compared to the figures normally bandied about in negotiations for use of personality rights in advertising. But also, because the sum failed to beat a previous settlement offer which Talksport had made of £5,000. The offer had been made by the radio station on the basis that if Eddie refused it, and insisted on going ahead to a full trial only to recover less than £5,000, Eddie would have to pay not only his own costs but also those of Talksport after the point at which they offered the £5,000. Talksport's tactic worked and Eddie came away from a court "victory" around £300,000 lighter once all the legal costs had been totted up.
As regards the amount awarded, perhaps it is not surprising that it was at the lower end of what might have been expected given the limited circulation of the material in question. However the one thousand journalists were a high quality and influential catchment, and a £2,000 pay-off is not going to be much help to personalities and their agents in negotiating up endorsement fees.