Professional Documents
Culture Documents
An analysis of the legal position should be included, using legislation and case law to define the
issues involved on both sides.
The English courts were reluctant to recognise specific personality rights for a long period of
time. In the absence of such rights, trademarks were still present. In 2002, however, when the
case of Irvine v Talk sport was being ruled, there appeared certain changes. As the case was
ruled in the favour of Edmund Irvine, the successful Formula 1 driver, the celebrities clinged to
the positive edge in the legislations. The recognition of the image rights was encouraged with the
out of court settlement between the former English Cricket star Ian Botham and the developers
of the Guinness brand Diageo.
The issue was the use of Botham’s images of one of his best performances in 1984 in Guinness’s
advertising campaign. The judgement passed in the Irvine case is sought to have encouraged the
settlement for this case.
As Richard Haynes elaborates, “In copyright law it is the broadcaster that holds the right to
license secondary uses of the footage – in this case Botham." What Haynes wanted to emphasise
is the fact that Botham’s ability to force out of court settlement due to threat of litigation
emphasises stunning change in the legal system with respect to image rights.
Simon Brown L.J. rejected the claim for ‘character rights’ by stating, “Thirty years earlier,
indeed, when it was contended for as a corollary of passing off law, it had been rejected in
McCulloch v. May. I would continue to reject it. In addressing the critical issue of distinctiveness
there should be no a priori assumption that only a celebrity or his successors may ever market (or
license the marketing of) his own character. Monopolies should not be so readily created.
Goodenough aptly describes the situation, “Plaintiffs lacking the real thing must rely on a
confusing number of analogies and neighbouring doctrines. These analogies and neighbouring
doctrines might include:
Passing Off
Trademark infringement
The Registered Designs Act 1949
The Trade Descriptions Act 1968
Copyright
Defamation
Malicious falsehood
Data Protection Act 1998
British Code of Advertising Practice
Control of Misleading Advertising Regulations
The Independent Television commission code of Advertising Standards and Practice
In any case concerning protection of privacy, an obligation of confidence was proved on the
basis that a person has got hold of some information in circumstances in which he/she would
have realised that the information is confidential and it would be claimed as unauthorised use if
the information is leaked without the consent of the person concerned. Meggray J aptly stated in
the Coco v A N Clarks case, “if the circumstances are such that any reasonable man standing in
the shoes of the recipient of information would have realised that upon reasonable grounds the
information was being given to him in confidence." Just the fact that the confidant had enough
sense to realise that the information he/she holds is confidential.
In the Shelley Films Ltd v Rex Features Ltd [1994] EMLR 134, the same dictum was elaborated
in interesting words, “Where a person obtained information by entering private Property despite
signs which indicated that such entry was not permitted.
Douglas V. Hello! Ltd. serves as an example for the action for breach of confidence. As
explained in the earlier parts of the paper, the case pertained to the wedding of the celebrities -
Catherine Zeta Jones and Michael Douglas. For the exclusive rights to publish the photographs
of the wedding of the celebrities, Douglas signed a contract with OK magazine which made a
huge amount of money to the couple. The wedding however was infiltrated by a freelancer who
took certain photographs and successfully sold it to Hello!
Hello! published the photos in one of the issues and sold 1,50,000 more copies than their usual.
When the case was brought in front of House of Lords, the majority’s opinion put forth by Lord
Hoffman.
The opinion regarded that there is a cause of action for the breach of confidence. This was
established on the basis of presence of three key elements:
The information had to have the quality of confidence;
It had to be imparted in circumstances of confidence; and
There had to be an unauthorised use of it to the detriment of the party communicating it.
Given the fact that the photos were not available publicly, there was a quality of confidence. The
condition for circumstances of confidence was fulfilled as every person attending the wedding
was asked not to click any picture and also not to communicate anything to anyone. The leaking
of information or pictures would have meant damage for OK who paid a huge sum to obtain the
exclusive rights. This is what exactly happened. The passing of the confidential information here
was detriment not to confider but to the confidant, which in this case was OK.