The Guernsey image rights laws came into force in December 2012. The new laws created a previously unrecognised form of intellectual property and allow the registration of concepts including fictional characters (Popeye) and brand logos.
The regulations follow the rise in recent years of the individual as a brand. High profile examples include Lady Gaga and David Beckham. Rights such as these were, and still are, protected under trademark legislation but recent changes in the operation of today’s marketplace and the advancement in technologies such as Twitter have created the requirement for image exploitation and product endorsement to be more adequately protected.
The new regulations focus upon the concept of a “registered personality’ which can fall into one of five categories. This personality can refer to a natural or legal person, a joint personality (eg. Ant and Dec), a group and fictional characters of humans or non-humans. Interestingly, the new laws also cover both dead people and extinct legal persons. Rights can currently be registered up to 100 years after the death of the personality.
For a fee of approximately £5,000 rights can be registered at Guernsey’s Intellectual Property Office and become enforceable in Guernsey courts. The image rights can be registered for a period of up to 10 years but can be formally renewed thereafter. The registration process facilitates for the legal proprietor and the actual “personage’ (the personality of the person or subject) to be different bodies. The practicality of this being that many individuals will often assign their image exploitation rights to a third party.
The new laws can best be described as a combination of the existing regulations governing copyrights, trademarks and passing off. The initial protection is afforded to the proprietor of the registered personality. Upon registration the proprietor is afforded the legal ownership of the registered personality and the image rights and remedies associated with that ownership. Image in this respect can refer to any of the following; expressions, mannerisms, gestures, face, name and voice amongst others. This serves to allow the personality to protect not only their image but also the ancillary rights associated with it.
The holder of the image right is able to take legal action if a third party takes advantage of the image without holding an appropriate licence to do so. In order to sue for damages there is a requirement that the personality must be recognised in a wide or relevant sector of the public. The image right must also be distinctive at the time of the alleged infringement.
The new laws also have taxation benefits for the personality in permitting the personality to incorporate the registered image rights into their succession planning provisions. Recent indications suggest that at least one celebrity has already taken advantage of the new laws however with the regulations only recently coming into force we are yet to see any formal infringement challenges through the court process.
Here at Farleys we have a dedicated team of sports and media law solicitors. Please do not hesitate to contact us today to speak to one of our specialist lawyers who will be able to advise you on the best option in relation to any matter of use or misuse of image rights.
By Daniel Draper, Media Lawyer, UK