For many years the Law, as it relates to Sports, has continued to evolve. The sweeping changes in the commercial context of Sport have included changes in sports stars’ contracts, Merchandising, Agency, Health Insurance, Image rights and Intellectual Property. Sport law is indeed a field of law that has proven to be incredibly vast and a minefield of evolving laws. However, in relation to the protection of the Image rights of Sport Celebrities, Sport Clubs and Organisations, the laws of England has generally failed to evolve in tandem with the changes in the commercial aspect of sport
Jeremy Blum and Tom Ohta, in their article ‘Personality disorder: Strategies for protecting Celebrity names and images in the UK’ (2014) 9 (2) Journal of Intellectual Property Law & Practice 137 described such rights as “a person’s ability to prevent unauthorized use of his name likeness or other essential personality features, such as their physical style, nicknames, signature and even voice’.’ This position was recently re-iterated by Judge Birss in the ROBYN RIHANNA FENTY & ORS V. ARCADIA GROUP BRANDS LIMITED (T/A TOPSHOP) ANOR (2013)
“There is no such thing in England as a free general standing right for a famous person to control the reproduction of their image”
The implication of this decision would be that sport celebrities have no protection under law as the law cannot protect a concept that derived from a non-existent right. This is especially troubling in view of the fact that many sport stars and celebrities have huge revenue potential derivable from the exploitation of their images; in many instances, revenue from commercialisation of their images and popularity through sponsorship deals, merchandising and product endorsements far outweighs the wages they receive from sport itself. Thus, by pronouncing that they have no exclusive right to protect the reproduction of their images, the Court may have unwittingly damaged this great revenue stream for sport celebrities.
On appeal, the Court of Appeal while re-affirming the holding that regarding the non-exclusivity decision of the Judge Birss, noted that celebrities can still rightly bring an action to protect themselves if the activities of the infringer amount to a misrepresentation that the celebrity has endorsed or approved the exploitation made by the infringer. This provides some succour but it is not enough, there is the need for the law to change in order for celebrities to have their image rights clearly protected by law.
On a good note however and despite the sad failure by the court to lay the matter to rest, sport celebrities can still protect their rights by utilising protections, reliefs and remedies available under common law such as the tortuous protection against passing off as held by the Court of Appeal in the Rihanna Fenty v. Arcadia case.
The Court of Appeal held that three elements must be established for a claim of passing off to succeed – that (i) the celebrity has relevant goodwill; (ii) the infringer has misrepresented by its activities the endorsement or approval or the celebrity; and (iii) the infringer’s activities have caused or is likely to cause damage to the celebrity’s goodwill. In addition to the protection against passing off, sport celebrities can also exploit rights and protections available under intellectual property laws and even from the fundamental human rights to privacy. Using any or a combination of these protections and rights, sport celebrities can commercially exploit their images without having to worry about the ‘no exclusivity’ pronouncement of the court in Rihanna Fenty v. Arcadia.
by Mojolaoluwa Olaifa