Information about personality rights and if trade mark law can protect an individual’s name and likeness?
What are personality rights?
Do personality rights exist in the UK?
Can trade mark law protect an individual's name and likeness?
Are there any particular categories of personality that are more likely to complain about unauthorised use of their names or likenesses in advertising?
Can I use dead personalities in ads without fear of legal claims?
What about demands for licence fees from US agents for dead US film stars?
Why is the position likely to be easier in a lot of cases if use is UK only?
Is there any problem with using people in the street?
If I rent out a library picture for ad use will the licence fee buy out any personality featured?
What about fictional characters?
What are personality rights?
In the US, personality rights or so-called rights of publicity protect public figures from exploitation. The right allows them to prevent the use of their name and likeness for commercial (but not editorial) purposes. The right survives death and is available in most (but not all) US states.
Do personality rights exist in the UK?
There are no "personality rights" in the UK as such. Copyright will not protect an individual's appearance or features. However, individuals can prevent publication of a photograph of themselves if (1) the photograph was commissioned by them for private and domestic purposes (see moral rights); (2) publication is in breach of confidence; or (3) the photograph (with or without accompanying text or a caption) is defamatory or (4) assuming the individual has a public profile, the use of the personality amounts to "passing off".
Use of a personality name or likeness (e.g. using a "lookalike") may also cause defamation or passing off problems, while a personality may be required to complain by an obligation in an existing endorsement contract not to allow his or her name or likeness to be used by other advertisers. Furthermore, the Radio Authority, ITC and Committee of Advertising Practice's Advertising Codes all provide that individual living persons must not normally be portrayed or referred to in advertisements without their prior permission.
Can trade mark law protect an individual's name and likeness?
Yes, but whether an application to register a famous name or face as a trade mark will succeed depends on a number of factors including the fame of the individual, how quickly the applicant seeks to register the likeness and the nature of the goods or services over which registration is sought. The issue is whether the trade mark is inherently distinctive of the individual i.e. does his image link the goods or services to her and her alone?
Are there any particular categories of personality that are more likely to complain about unauthorised use of their names or likenesses in advertising?
Our experience is that sports personalities come top of the risk charts, with pop stars a close second. There are lower risk categories but since there are no hard and fast rules in this area we believe it would be invidious to identify them here.
Can I use dead personalities in ads without fear of legal claims?
Under UK law the estates of deceased personalities have no right to sue for alleged damage to the reputation of the deceased. There is also no known case where the UK courts have entertained an estate's passing off claim in respect of unauthorised use of a deceased personality to advertise a product. In addition, none of the UK's advertising Codes expressly forbid use of the dead (unless this might cause distress).
All this means that so long as the marketing material in question is for UK dissemination only, the deceased's name has not been registered as a UK trade mark (see Trade mark FAQ's) and all necessary copyright/performance right clearances have been obtained for any photograph or footage used, deceased personalities are the safest bet!
What about demands for licence fees from US agents for dead US film stars?
Provided the material complained of has only appeared in the UK and the dead personality's name is not a UK registered trade mark, the chances are you can tell them to go hang.
Why is the position likely to be easier in a lot of cases if use is UK only?
Because other countries such as the US have well developed personality rights, or "rights of publicity" as they are called in the US. These survive the death of the personality and can be exercised against even the most limited advertising use of the person in the US. Special care should be taken therefore if for instance a printed publication has even a very modest level of controlled circulation in the US
Is there any problem with using people in the street?
In print advertising destined for the UK, so long as the reference to the person is not defamatory or a breach of confidence, there is unlikely to be a legal or Code problem. In broadcast ads the Codes are such that you will need written permission unless it is a crowd scene where particular individuals are virtually impossible to identify. Take advice on the best wording to use for a release form.
If I rent out a library picture for ad use will the licence fee buy out any personality featured?
Very unlikely, but check the small print. The chances are it will put the onus squarely on the person taking out the licence to clear the use with the personality featured.
What about fictional characters?
These, as they say, are a whole new ball game. There is a risk that unauthorised use will give rise to passing off and trade mark infringement problems, and if it is a cartoon character and use of existing artwork is involved, copyright infringement risks as well. Characters from "out of copyright" fiction should be lower risk so long as they have not been revived and given such a new lease of commercial life (e.g. Quasimodo, Frankenstein) that the film production or other company responsible for doing this may have a passing off or breach of copyright claim. In short, great care is needed and advice should be taken in each case.
