What are Publicity rights?

Traditionally the concepts of privacy and publicity have been closely

linked. However it wasnt until relatively recently that the right of
publicity grew out of the laws on privacy copyright and trademark
and developed in to a distinct and separate legal category.1
The concept of privacy encapsulates ideas about the protection of
human dignity. It recognizes a person as a physical and spiritual
moral being and guarantees his enjoyment of his own sense of
existence.2 Thus aspects of human personality like name reputation
image voice and privacy are regarded as extra patrimonial rights
without monetary value.3 In this context privacy rights may be
regarded as quasi human rights.4
On the other hand the right of publicity may be defined as the right
of an individual to control the commercial exploitation of his or her
name, likeness and persona, and the right to receive remuneration
from that exploitation.5
The major catalyst for the emergence of publicity rights as a
separate legal category from privacy rights was the decision in the
case of Haelan Laboratories v Topps Chewing Gum where in Frank J
stated We think that, in addition to and independent of the right of
privacy (which in New York derives from statute), a man has a right
in the publicity value of his photograph Whether it be labelled a
property right is immaterial; for here, as often elsewhere, the tag
property simply symbolizes the fact that courts enforce a claim
which has a pecuniary worth.6
Further separating the concepts of privacy from publicity rights is
that privacy rights have support from data protection acts, which
was used intensively in the Naomi Campbell case,7 where as
publicity rights on the other hand are not yet recognized in the U.K

1 Gillian Black 'Recent Developments in Publicity Rights in The UK:

Where Now for Celebrities?' in Hugh C Hansen (eds) Intellectual
Property Law and Practice Vol 11 (Hart, 2010) 497
2 Neethling, Personality Rights, chapter 48, in Elgar Encyclopedia
of Comparative Law, ed Jan. M Smits (2006) 530
3 Reiter Personality and Patrimony: Comparative Perspectives on
the Right to Ones Image, (2001-2002) 76 Tulane Law Review 673at
680,
4 Black above, n1 ,497.
5 R. Penfold, A. Batteson, J. Dickerson How to defend image rights
M.I.P. 2005, 148 Supp (Brand Management Focus 2005), 19-21. In
the Estate of Elvis Presley v Russen (513 F Supp 1339 (1981), 1353).
6 Pg 4 Black
7 Mc Gucking pg 5

Whether or not these rights are recognized and the extent to which
these rights are recognized appears to differ from jurisdiction to
jurisdiction
For instance in the United Kingdom this right is not explicitly
recognized in any statue as such, nor are the courts in the United
Kingdom especially keen to recognize this right.
The courts in the different jurisdictions also appear to have different
opinions on whether or not this right is to be characterized as a
property right, or a right of personality. Indeed as the arguments
that follow make it clear whether or not this right is classed a
property right or a right of privacy also depends on what interests
the court in question are keen to protect. In the United States where
the entertainments lobby is especially powerful this right is
characterized as a property right. As a result individuals are able to
more effectively control the commercial exploitation of their image.
This resource base will focus on the issues surrounding the
recognition of a right to publicity as defined above rather than the
traditional concept of privacy as expressed above. It will first explore
how this concept has been realized in Australia, United Kingdom
(focusing mostly on England), United States and Canada. It will then
proceed to discuss whether or not such a right should be recognized
and if so to what extent.

Publicity Rights in the U.K

The starting position in the United Kingdom is that there is no
explicitly recognized right to publicity either in the common law or in
statue law. Indeed the prevalent attitude of the English courts seem
to be that view seems to be "some men and women voluntarily
enter into professions which by their nature invite publicity, and ...
[i]t is not unreasonable in their case that they should submit without
complaint to their names and occupations and reputations being
treated ... almost as public property.8
As a result these public figures have been forced to try and fit their
grievances in to the nearest appropriate legal doctrine in order to
seek redress for their concerns.
Publicity rights in the U.K are currently derived from the two torts of
passing off and breach of confidence.9 Although there is no explicit
statue law covering this field there has been some attempt to rely
on protections through mechanisms such as registered trademark
protection.10
The U.K Response: Case Law
Tort of Passing off
The common law tort of passing off was initially designed to defend
against competing traders in the same field of business passing off
their products as the products of another competitor.11 Its stated
rationale was to prevent commercial dishonestly.12
In Lyngstad and Others v Anabas Products Ltd and Another The
Swedish pop group, ABBA sued the defendants for producing and
advertising pillowcases bearing the names and photograph of the
group. They based their argument on passing off. However the
group action was dismissed based on the fact that there was no
prior trade by Abba in the field of pillowcase making nor did they
have substantial licensing activities in the U.K at the time. The
group had failed the test for a common field of activity.
However since then the tort of passing off appears to have been
extended by the U.K Courts in the case of Irvine v Talksport where
Eddie Irvine a top F1 diver brought an action in passing off against
Talksport for the unauthorized usage of a doctored image of him
holding a radio branded with the defendants radio station logo on a
brochure that was distributed to around 1000 potential clients. Here
the court held that there was no need for a common field of action
with regards to false endorsement and that the action in passing off
could succeed. This case was subsequently recognized by the High
8 Tolley v. Fry, 1 K.B. [1930] 467, 477, rev'd on other grounds,
[1931] A.C. 333
9 G.B Black Recent Decelopments in Publicity in the U.K
10 Black pg 7
11 tan pg 3
12 tan pg 3

Court and the Court of Appeal when the original award of damages
was increased from 2000 to 25000 on appeal.

Breach of Confidence
This is a common law tort that protects private information that is
conveyed in confidence. In order for a breach of confidence action to
be successful there must be a duty of confidence first.
Prior to the case of Douglas v Hello actions this tort was ill suited to
protecting publicity rights, as there was a requirement for an initial
confidential relationship. In this case the Douglases entered in to a
contract with OK magazine giving OK the exclusive right to publish
their wedding photographs for one million pounds. Shortly
afterwards Hello magazine which was also interested in the
publication of these photographs purchased photographs from a
photographer who had gained unauthorized access to the wedding
and taken photographs of the wedding. Hello magazine then went
on to publish these photographs.
Relying on the Human Rights Act 1998 which implemented the
European Convention on Human Rights in to English law the
Douglases action for breach of confidence and invasion of privacy
was successful. The essence of this tort can now be encapsulated as
the misuse of private information.1314
OK magazine also brought a separate action against Hello for the
damages, which was rejected by the court of Appeal. OK then went
on to appealed this decision at the House of Lords. The House of
Lords had to decide What rights does an exclusive licensee have
against third parties whose unauthorized actions interfere with the
exclusive license.
OK was successful in this appeal by a narrow margin as it was able
to demonstrate that the photographs constituted confidential
information amounting to a commercial trade secret, that they as an
exclusive licensee were entitled to enforce their interest in the
Douglases commercially confidential information and that the
publication of these photographs were unauthorized and infringed
this commercial confidentiality.
Establishing breach of confidentiality depends on proving
the existence and breach of a duty of confidentiality
Publicity Rights in Australia
As far back
The position in Australia is that there is no proprietary right in one's
name, image or persona, unlike the position in the United States
("right of publicity") or Canada ("appropriation of personality").15
It was stated by the High Court of Australia in Campomar Sociedad,
Limitada v Nike International that it should be regarded "as an
authoritative statement of contemporary Australian law" that there
13 Black Page 8
14 pg 11
15 John Mc Mullan

is no right of publicity or tort of personality appropriation in

Australian law
As a result Australian cases have been restricted to s52 of the trade
practices act and an extended version of the tort of passing off
which is based on the decision in Henderson v Radio Corp Pty, which
was characterised as a misrepresentation of endorsement tort by
the Supreme Court of New South Wales16
The expanded form that the tort of passing off has taken in Australia
it is said to protect the ability to recommend or promote goods
services and or merchandising rights.17 Passing off can be
established where consumers are deceived as to whether or not
there is a business connection between the celebrity and the
defendant that is a misrepresentation which creates a false belief in
the minds of consumers that the parties have a commercial
arrangement.
However this approach has been criticized as once courts find that
there has been a misappropriation of the plaintiffs promotional
good will the courts look for a misrepresentation to satisfy the
relevant tort artificially. 18 For instance in the Hutchence (trading as
INXS) v South Sea Bubble Co Pty Ltd,19 the plaintiff Hutchinson was
able to recover against the bootleg corporation as the t-shirts had
not been authorized by the relevant parties even thought the tshirts carried labels stating that they were not authorized by the
relevant parties however in the Olivia Newton John case where a
look alike played an advertisement which contained a disclaimer
that stated Olivia? No, Maybelline the court stated that there was
no misrepresentation for the purpose of a s52 claim as the public
would not be likely to conclude that the makers of the
advertisement were associated with Ms Newton John.
How should Personality rights be characterized?
There is significant debate among academics as to whether
personality rights should be characterized as property rights privacy
rights
Why should Personality rights be protected?
Why should limitations be placed on the protection of
personality rights
Conclusion

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17
18
19

E McGukin pg 10
Zapporoni pg 7
McMullen
mc mullen