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.