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Rihanna succeeds against Top Shop for “Unfaithful” use of image on a T-shirt

RihannaOne of the summer’s Intellectual property highlights was when Mr Justice Birss QC of the Patents County Court found in favour of mega successful singer Rihanna against clothing retailer, Top Shop, for using an image of her on a T-shirt giving the impression that it was officIal merchandise and approved by her.

The background is that Rihanna had previously endorsed Top Shop. However, separate from such arrangement Top Shop had purchased photographs from a photographer taken of Rihanna during the video shooting of her song We Found Love.

One of the images appeared on a line of T-shirts produced by Top Shop and sold in 2011 and early 2012. However, Top Shop had not sought the permission of Rihanna nor her management for the use of her image in the context of that t-shirt.

In the light of the previous relationship with Top Shop it gave the impression that the t-shirt was official merchandise and endorsed by Rihanna which was not the case.

Mr Justice Birss QC in his written judgment made clear that in English law that there was no legal concept of image rights. However, Rihanna had proven her case as one of passing off whereby a substantial number of customers were likely to have bought the t-shirt in the belief, albeit falsely, that the product had been authorised by Rihanna.

The judge considered that it represented damage to her goodwill and it was for her to determine what garments the public thought had received her endorsement.

Mr Justice Birss QC did not suggest that there had been any bad faith on the part of Top Shop, but given their previous relationship with Rihanna he considered that confusion in the market place would arise as to whether the product was thought to have had been officially endorsed. Top Shop are considering an appeal and feel no confusion has arisen.

The case has importantly clarified the matter of image rights in English law and that artists cannot stop the use of photographs of themselves for use on product, but they can prevent passing off of products where they are sold or promoted in a certain way that may lead the public to believe the product has the official endorsement of the artist.

Mr Justice Birss QC decision is a useful “Watch n Learn” about the use of passing off rules to prevent misuse of an image of an artist, and the lack of a role for image rights in English law.

A more detailed analysis of this decision will follow in due course.

 

Julian Wilkins

Julian Wilkins is Editorial Director for Blue Pencil Media Limited. Julian has a LLB (Hons) in law and M.Phil in law as well as a Diploma in European law and was admitted as a solicitor in 1988; he practices in the area of media, entertainment, and intellectual property law as a consultant for Devereaux Solicitors in London. Julian is also a Notary Public and CEDR accredited commercial mediator. Julian has written for academic publications and contributed to an Exhibition Catalogue about 1960s photographer Philip Townsend. Julian is a member of the International Association of Entertainment Lawyers and also the British Institute of International and Comparative law. Julian is a finalist in The Media Lunch Club “Short Circuit” script competition to be held in November 2011. Julian’s comments “The rapidly changing world economy and technology is presenting incredible opportunities for the Creative Industries and Blue Pencil hopes to reflect and contribute to these changes.”

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