Pop megastar, Rihanna’s, 2013 judgment against Topshop (which we wrote about here) has today been confirmed by the London Court of Appeal.
In 2012, Topshop sold a fashion T-shirt bearing a clearly recognisable image of Rihanna. She sued for £3.3m for the unauthorised use of her image and the strong likelihood that a substantial number of people buying the T-shirt would think that she had endorsed it when, in fact, it was not connected to her at all.
In the High Court, in 2013, the judge found that the sale by Topshop of the T-shirt was, in the circumstances, likely to lead people to buy it in the belief that it was a T-shirt which Rihanna had approved or authorised, and that this had caused her damage. Topshop appealed.
Dismissing the appeal, the Court of Appeal today held that the High Court judge had properly distinguished between endorsement and general character merchandising. He found that the sale of the T-shirt bearing Rihanna’s image amounted to a representation that she had endorsed it. The proposition that Rihanna had no right to control the use of her image in general under English law did not lead unavoidably to the conclusion that the use of a particular image of her could not give rise to the mistaken belief by consumers that the T-shirt to which it was applied had been authorised. The High Court judge was entitled to find that Topshop was both recognising and seeking to take advantage of Rihanna’s public position as a style icon.
Unlike in other countries (notably the US), there is no “image right” under English law. This case, however, confirms that a celebrity can prevent the unauthorised use of his/her image provided that they are able to prove that: (1) goodwill attaches to it; (2) that activity by a third party involves a misrepresentation that the celebrity is connected to the goods in issue; and (3) that the celebrity has suffered damage as a result. There are limited circumstances in which it will be possible to prove all three criteria but, nevertheless, as a result of today’s ruling celebrities will perhaps seek to make greater use of “false endorsement” claims to control unauthorised uses of their image going forwards.
Eleanor Steyn is an Associate in the Disputes and Reputation teams.