|
|
This database is now a Wiki. Click here for the latest content | |
|
[-] Home Country listing: |
Personality rights in United Kingdom – An IntroductionThe development of personality rights in the UK differs considerably from the majority of other countries. In the US, the Warren and Brandeis Article in the Harvard Law Journal in 1890 (4 Harvard Law Review 193 (1890)) started an evolution that, despite the prominence given to the First Amendment, led to the development of a comprehensive law of privacy which in turn led to a right of publicity. In Germany, even before the Constitutions of Weimar and, notably, Bonn, a 1909 statute had granted portrait rights. In other common law countries such as Australia, New Zealand and South Africa, privacy was more of an issue than in the UK. However, it appears that in the 21st century this is changing in the UK and a law of ‘personality’ is developing. This is true for both the commercial and dignitary (privacy) aspects of the law. I. The commercial aspect of personality rightsTraditionally there has been no protection of the commercial value of one’s own personality in England. This is despite early approaches to make use of torts such as libel, breach of confidence and passing off, see Tolley v Fry [1931] AC 333. The courts differentiate between two groups of cases: false endorsement and merchandising. The first encompasses the use of individuals to advertise certain products. The second refers to the sale of memorabilia that link in some way or another to ‘famous’ persons (e.g. a picture of a pop group on a T shirt). The attitude of the English courts to the first group (false endorsement) seems to have changed. 1. EndorsementIn McCulloch v May [1947] All ER 845, the court made clear that false endorsement does not give rise to actionable claims. They thought it was a mandatory requirement for an action of passing off that the claimant and the defendant were engaged in the same field of activity. Only that way might the public be mislead about the origin of the goods in question. Public figures could thus be used in commercial advertisements quite freely. In the decision Irvine v Talksport [2002] EMLR 32, Laddie J. reversed that point. Taking into account decisions from Australia and New Zealand and analysing the law before McCulloch v May he found that the public can be misled if the likeness of a famous person is used to advertise a product without authorisation. It is necessary, however, that this person has built up sufficient goodwill and that the advertiser gives the impression that the person used really endorses the product. It would appear that ‘the man in the street’ can still be used for advertising purposes without a licence, at least as far as the action of passing off is concerned. 2. MerchandisingThe second limb of commercial personality law, character merchandising, has not developed as. Lyngstad and Others / Anabas Products and Another (ABBA), [1977] FSR 62 is still the law. In that case Oliver J. expressed the view that the public would not believe that a music group was responsible for all memorabilia bearing their name or image. This is especially so if the music group themselves are not in the business of selling memorabilia (T-Shirts, mugs and the like). An action of passing off was thus not relevant and merchandising of memorabilia does not require a licence in the UK. The Elvis Presley Trade Marks case [1999] RPC 567 endorsed that view. By saying that a trade mark of the name of a famous person would be descriptive rather than distinctive for memorabilia sold with the picture or name of that person on it, the Court of Appeal appeared to remove the possibility of registering a trade mark for a band in connection with those types of goods and services. II. The privacy aspect of personality rightsThe privacy aspect of personality rights has been developing. In 1990, when Kaye / Robertson & another [1991] FSR 62 was decided, there was little if any protection of privacy in the UK. Freedom of the press outweighed all other interests. There were no torts available to protect an individual’s private sphere apart from an action of breach of confidence. This encompassed issues such as marriage secrets: Ungoed-Thomas J. in Argyll v Argyll [1967] Ch. 302. But that protection was narrow in scope. With the coming into force of the Human Rights Act 1998 the boundaries have moved. The courts have used section 12 of that Act as a means by which to develop notions of privacy but have done so by reference to the action of breach of confidence. It is not yet clear whether the courts will develop a free standing right of privacy or tort of invasion of privacy. Following the Spycatcher case, Attorney General / Guardian [1990] 1 AC 109 the courts still ask as to whether information can be classified as secret per se. A duty not to publish such information can then arise outside of contractual or other special relationship. In determining if such a duty arises, the judges apply the test of Art. 10 (2) ECHR and seek to strike a balance between the freedom of the press as protected by Art. 10 (1) ECHR and the right to private life, as protected by Art. 8 ECHR. On the fine-tuning of that balance, the courts look to the Press Code. In that Code long lens photography is prohibited. The cases show that the Courts, having established the basic framework, still struggle to find the line in the grey area between the values. The Courts permitted a newspaper to publish photographs of Naomi Campbell leaving a Narcotics anonymous group, the purpose being to “put the record straight”. The model had earlier stated that she had never used drugs: Campbell / Mirror Group Newspapers [2003] EMLR 2, p. 39. A television presenter visiting a brothel was seen as public event and thus subject to being reported on, even if the accompanying photographs were not: Theakston v MGN Limited [2002] EMLR 22. On the other hand, the courts considered that Michael Douglas and Catherine Zeta-Jones had a cause of action when unauthorised photographs of their wedding appeared in Hello! Magazine despite the fact that that they had sold the right to publish photographs to another magazine. While Continental jurisdictions tend to separate questions of privacy and questions of publicity the human rights component of the latter being seen as not too important. Douglas v Hello! suggests that the English courts mix the spheres. Case ListNo genuine right of privacy :
Tort law alternatives: Breach of confidence:
Privacy versus Freedom of the press:
Protection of personal data:
The impact of the Human Rights Act 1998:
The blurred line between privacy and commercial exploitation:
The evolution of the requirements for passing off actions: Absence of specific protection for character merchandising:
Literature List:Books
Articles, documents and working papers1. N R Whitty, “Rights of personality, property rights and the human body in Scots law” Edinburgh Law Review, (2005), Vol. 9, Issue 2, 194-237. 2. A Adrian, “What a lovely bunch of coconuts! A comparison between Louisiana and the United Kingdom with regards to the appropriation of personality.” Ent. L.R., 2004, 15(7), 212-220. 3. G Davies, “The cult of celebrity and trademarks: The next instalment” (2004) 1:2 SCRIPT-ed, 280 <http://www.law.ed.ac.uk/ahrc/script-ed/docs/agents.asp> 4. L Skinner, “You’re a celebrity, madam. So do we have a right to share your privacy in a public place?” Comms L., 2004, 4, 118-121 5. C Craig, “Zeta-Jones – so what’s the damage?” C.L.S.R. 2004, 2, 137-138. 6. W Anson, “What’s it worth?” C.W. 2004, Vol. 145, 21-25. 7. D McKie, “Private lives in public” J.L.S.S., 2004, 8, 24-25. 8. R Buchan, “Personality Rights: a brand new species?” J.L.S.S. 2004, 9. B Dresden & R Andrews, “Is the number up for caricatures in advertising?” Comms L 2004, 3, 85-86. 10. F Robinson, “How image conscious is English Law” Ent.L.R., 2004, 15(5), 151-156. 11. H Carty, “Advertising, publicity rights and English Law” I.P.Q. 2004, 3, 209-258. 12. M Turle, “Press reigned in by House of Lords decision” C.L.S.R. 2004, 4, 314-316. 13. S Goldberg, “The contest for a new law of privacy. A battle won, a war lost? Campbell v MGN Ltd (2004) UKHL 22” Comms L., 2004, 4, 122-125. 14. J Morgan, “Privacy in the House of Lords, again” L.Q.R., 2004, 120 (Oct.), 563-566. 15. G Scanlan, “Personality, endorsement and everything: The modern law of passing off and the myth of the personality right” [2003] E.I.P.R. 563. 16. J C Cohen, “The problem with personality: Trademark lawyers are less than clear about their role in protecting the rights of personalities,” Trademark World, (2003), Issue 156, 40-42. 17. J S T Kotler, “Merchandising celebrity: A user's guide to personality Rights,” Intellectual Property Journal, (2003), Vol. 16, Part 1/3, 1-43. 18. D Black, “Memorabilia - the King and Queen of Hearts. The Golden Jubilee provides a good moment to examine the English law of personality rights and related areas,” Trademark World, (2002), Issue 148, 26-29. 19. S Boyd, “Does English Law recognise the concept of an image or personality right” Ent.L.R, 2002, 13(1), 1-7. 20. S W Coombes, & E May, “Getting ‘personal in the UK’” C.W. 2002, Vol. 119, 16-18. 21. M Antingham, “Personality rights in the United Kingdom” Trademark World, (2002), Issue 147, 40-42.
22. E C Hansen,
“The right of publicity expands into hallowed ground: Downing v. Abercrombie &
Fitch and the preemption power of the Copyright Act” 23. R Penfold & E Kiernan, “Entertainment: The issue of personality and image rights has rarely been far from the headlines recently” Inhouse Lawyer, (Feb. 2001), 38-40. 24. J King, “The protection of personality rights for athletes and entertainers under English intellectual property law: Practical difficulties in relying on an action of passing off” (2000) 7 Sports Law. J. 351 25. R Harper, “UK personality rights Jane Austen: Whose name is it anyway?” Trademark World, (2000), Issue 13, 10-13. 26. M Antingham, “A fortune out of fame: Personality rights in the UK,” Trademark World, (1999), Issue 120, 25-28. 27. P Bolger, “The common law and the tort of appropriation of personality: Part I,” (1999) 3 Irish Intellectual Property Review 1. 28. J Hatton, “Personality rights-developing a personality of their own?” International Trade Law Quarterly, (1998), No.3, 140-150. 29. S Boyd, &R Jay, “Image Rights and the effect of the Data Protection Act 1998” Ent.L.R. 2004, 15(5), 159-162. 30. 30. C Steele, “Personality merchandising, licensing rights and the march of the turtles,” Sport and the Law Journal, (1997), Vol. 5, No. 2, 14-22. 31. C L Buchanan, “A comparative analysis of name and likeness rights in the United States and England, 18 Golden Gate U. L. Rev., 301 (1988). |
|
|
Published by the AHRC Research Centre for Studies in Intellectual Property and Technology Law Website design, implementation and programming by Andrés Guadamuz. All material is copyright of the AHRC Research Centre for Studies in Intellectual Property and Technology Law and contributors. Web Statistics powered by MetaTraffic |