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Does the UK need a stand alone image right for the new millennium?

by Ben Challis, Barrister-at-law

In this article Ben Challis examines current developments in the United Kingdom which could be used to support the concept of a coherent stand alone ‘image right’ for celebrities. But Ben asks whether it is time for legislation to govern an area of such of obvious economic importance.

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Celebrity ‘image’, ‘publicity’ or ‘personality’ rights are big business in the advertising and endorsement industries with stars as such as David Beckham and Kate Moss generating millions of pounds in revenue from the exploitation of their name, likeness and image. Until recently it would have been more than fair to say that “there are no image rights in English law, unlike the position in several other countries” but a number of recent court decisions have meant that this position needs to be re-examined.

In jurisdictions where image rights do subsist, the development of the law usually follows one (or both) of two paths. The first is the development of an actionable right to privacy (or a ‘dignitarian’ right) and the second is the development of an economic right whereby a celebrity’s image or personality can be exploited economically. These privacy and publicity rights are usually set in the context of existing regimes of copyright law, performer’s rights, trade mark law, trades description legislation, data protection provisions and the laws of defamation which can also, to an extent, protect creative works, performances, trade and personal reputation.

In the United Kingdom three recent court decisions have taken these ‘privacy’ and ‘personality’ strands and have, through the use of the law of passing off, a re-interpretation of trade mark law and recent moves to embrace a new ‘law of privacy’, developed what might possibly be called a ‘fledging’ image right. These three cases are Eddie Irvine’s successful action against Talksport Radio for passing off, Arsenal’s trade mark action against the seller of ‘unofficial’ Arsenal merchandise and folk singer Lorna McKennitt action for breach of confidence against a former friend and confidant which followed on from Naomi Campbell’s action against Mirror Group Newspapers and Michael Douglas and Catherine Zeta Jones’ action against Hello! magazine.

 

THE UNITED KINGDOM – Passing off

The case which initially had the biggest impact on the advertising and endorsement industries was the case brought by Formula One driver Eddie Irving against Talksport Radio. Talksport had obtained the rights to broadcast coverage of the Formula One Grand Prix World Championship and produced publicity material which carried a photo of Irvine holding a radio. The copyright to the image had been lawfully obtained, but whereas Irvine had been holding a mobile phone when the picture was taken, the radio station had altered it to show him holding a radio instead, on which was written the name of their station (Mewburn Ellis). Irvine ‘s successful claim in passing off against TalkSport Radio for using his photograph in a promotional brochure resulted the award of damages and the court held that Irvine had a property right in his goodwill which he could protect from unlicensed appropriation, here consisting of a false claim or suggestion of endorsement of a third party’s goods or business. However this case was not quite as novel as it seemed: As far back as 1931 in Tolley v Fry, Tolley, a successful amateur golfer, was held to have a cause of action against chocolate manufacturers Fry after they produced a picture of him with a bar of their chocolate in his pocket. The action was based on the fact that Tolley, an amateur, could sue because of the inference that he was paid by a sponsor therefore compromising his amateur status. However the Irvine case is important as it was the first successful case of passing off based on “false celebrity endorsement”. Irvine was able to prove that he had substantial goodwill in his image (which was effectively his “business”), that the station had falsely implied that he had endorsed their activities and so were taking advantage of his fame to attract business, and that damage to his reputation could occur by reducing the exclusivity of the use of his image.

However it the two decisions by the Court of Appeal in Arsenal Football Club Plc v Reed (2003) and Niema Ash v Loreena McKennitt ( 2006) which have cemented together the rudiments of a actionable ‘image right’ or ‘personality right’ giving the second and third leg to the tripod which carries a ‘image right’ which can protect the commercial exploitation of a celebrity’s personality.

 

Trade Mark Protection

Most pop and rock artists will seek to protect their name and ‘brand’ as a trade mark or at least rely on passing off to protect their name against use by others – a very basic form of image right. Even without trade mark protection, passing off is an effective remedies against those who infringe an established name which has ‘goodwill’ attached to it. In Suth erland v V2 Music (2002)the pop group Liberty, who had last performed a live concert since 1996, were able to prevent an unrelated group from using their name five years later. By 2001 Liberty were only known to music business professionals and a few surviving fans but (and despite this) the High Court found that the “old” Liberty had enough residual goodwill to prevent the new group from using their name. The judge reasoned that because the use of the name by the new group would effectively obliterate the little goodwill which remained associated with the old group, the “old” Liberty would be prevented from ever benefiting commercially from their reputation in the future (Mewburn Ellis). The ‘new’ Liberty ended up as the successful pop act Liberty X.

However trade mark and passing off protection in the music, entertainment and sports industries is not always as comprehensive as those industries would want. Recently both rock band Linkin Park and Manchester United manager Alex Ferguson were not able to prevent the use of their names and image on posters sold by third parties as there names were purely descriptive. In the 1977 case of Lyngstad v Anabas Oliver J. expressed the view that the public would not believe that a music group was responsible for all memorabilia bearing their name or image. This is especially so if the music group themselves are not in the business of selling memorabilia (T-Shirts, mugs and the like)(cf Irvineabove). An action of passing off was thus not relevant and merchandising of memorabilia does not require a licence in the UK. The 1999 Elvis Presley Trade Mark case endorsed that view. By saying that a trade mark of the name of a famous person would be descriptive rather than distinctive for memorabilia sold with the picture or name of that person on it, the Court of Appeal appeared to remove the possibility of registering a trade mark for a band in connection with those types of goods and services.

It was therefore with some relief to the sports and entertainment merchandise industries that the Court of Appeal found for Arsenal in Arsenal v Reed. The merchandise industries had been somewhat alarmed by Laddie J’s decision in the High Court but the Court of Appeal, armed with a European Court of Justice’s decision, found that where a third party used in the course of a trade a sign that was identical to a validly registered trademark on goods which were identical to those for which the trademark was registered then the registered owner could prevent this third party use. The result of the Arsenal case is far stronger trade mark protection for band and artist’s names as ‘brands’.

 

Confidence and privacy

It is interesting that trade mark protection for the band as a brand had been drawn from a decision from the European Courts Again it is a decision from a European Court which is proving to be the most interesting addition to a ‘right of personality’ as the UK courts begin to develop a right to privacy based on the law of confidence and the provisions of Article 8 of the Human Rights Act 1998 .It is now the seminal decision by the European Court of Human Rights in 2004 which provides the spark for this change – the case of Von Hannover v Germany – involving the privacy of Princess Caroline Von Hannover (formerly of Monaco).

In Von Hannover the ECHR said that “a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of “watchdog” in a democracy by contributing to imparting information and ideas on matters of public interest it does not do so in the latter case.” And the ECHR added “Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned, this is not the case here. The situation here does not come within the sphere of any political or public debate because the published photos and accompanying commentaries relate exclusively to details of the applicant’s private life.”

Von Hannover was followed in 2005 by the Court of Appeal in Douglas v Hello! where the Court held that that the privacy rights in photographs of private occasions subsist even after their commercial sale, and that by extension such privacy rights are therefore capable of commercial exploitation. Secondly, the court found that following Von Hannover, the UK courts had a duty to protect the privacy rights given to the individual by virtue of Article 8 of the European Convention on Human Rights. To this can be added the observations of Lord Nicholls in MGM v Campbell where he said “the time has come to recognise that the values enshrined in Articles 8 and 10 [of the European Convention on Human Rights] are now part of the cause of action for breach of confidence.” He went on to observe that “the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy “.

This new doctrine has been most recently set out in McKennitt v Ash which revolved around efforts by successful Canadian folk singer Loreena McKennitt to prevent publication of parts of a book about her life by a former friend and confidante, Niema Ash. The Court of Appeal held that in order to find the rules of the English law of breach of confidence we now have to look in the jurisprudence of articles 8 and 10. Those articles are now not merely of persuasive or parallel effect but, as Lord Woolf says, are the very content of the domestic tort that the English court has to enforce. Accordingly, in a case such as the present, where the complaint is of the wrongful publication of private information, the court has to decide two things. First, is the information private in the sense that it is in principle protected by article 8? If no, that is the end of the case. If yes, the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10

The week before this decision was published the High Court had granted an injunction to prevent a jilted husband telling all about a celebrity sportsman’s affair with his wife and the case was followed by the Court of Appeal’s affirmation that HRH Prince Charles’s journals were indeed private, protected by confidentiality agreements and attracted copyright protection – so could not be published by the Mail on Sunday.

The combination of these cases turns a’ right to privacy’ into a quasi commercial right – a ‘right of privacy’. Just as section 16(1) of the Copyright Designs & Patents Act 1988 allows for the exploitation of copyrights by allowing the owner to restrict the uses made of a copyrighted work, now a celebrity, by being able to control and prevent the publication of private information and photographs can in turn use these ‘restricted acts’ to allow for the economic exploitation of the self same texts and pictures.

However Allthree of these strands of personality protection are based on court decisions and it should be noted that none have been, as yet, tested in the House of Lords: Irvingv Talkport reached the High Court (confirmed by the Court of Appeal who increased the award of damages from £2,000 to £25,000) and both Douglas v Hello and the McKinnett case reached the Court of Appeal. Indeed it is worth noting that in McKinnitt the Court of Appeal went as far as to distinguish a previous judgment of the House of Lords in A v B & C: the Douglas appeal is at the House of Lords.

So the question needs to be asked – should the music, entertainment and sports industries be lobbying for legislation to create a clear stand alone image right? I was surprised recently that the record labels and stars such as Sir Cliff Richard saw fit to campaign to ‘extend the term’ of the copyright in sound recordings in the UK and across Europe when perhaps a campaign to secure a statutory commercially exploitable stand alone image right might be a more valuable use of their efforts. It is worth looking at other jurisdictions to see how they have developed their personality or image rights and how they afford protection by privacy and adopt doctrines to allow for the exploitation of image.

 

THE POSITION OF IMAGE RIGHTS IN THE USA

In the USA the development of a right of privacy can be traced back to an article by Warren and Brandeis in 1890 where the authors argued in favour of a general privacy law and for recognition of a “right to be left alone” but when the concept was first tested by the Courts in Roberson v Rochester the court rejected a common law right of privacy (http://www.law.ed.ac.uk/ahrb/personality/us.asp) As a result the State of New York introduced provisions into state Civil Law and the unauthorised use of the name or picture of a person for commercial advertising or trade was prohibited. The US is a good example of the statutory development of an economic rights alongside the constitutional protection of individual privacy However, it was not until the 1950s that the courts first accepted the existence of a self standing property right as opposed to a mere personal right, here acknowledging that baseball players had the right to consent the sale and marketing of picture cards of themselves. Today over 30 US states acknowledge some form of image or publicity right, either under the common law or based in statute and these laws been extended to include cover ‘look alikes’ (Onassis v Christian Dior) and even ‘sound alikes’ – the 1988 case of Bette Midler v Ford Motor Co found that hiring a sound alike vocalist to impersonate Bette Midler in an advertisement was “to impersonate her voice’ and thus was ‘ to pirate her identity’ just as Dior’s action in using a Christine Onassis look alike model had infringed her rights.

However in should be noted that in the USA these rights are tempered by the constitutional First Amendment right of free speech as well as the generous rules of fair use. In the 1998 case of ETW Corp v Jireh Publishing, ETW, the licensing agent of well-known golfer Tiger Woods, brought a claim in Ohio against a publisher of a picture which featured Tiger Woods’ image in a group portrait of famous Masters golfers entitled the ‘Masters of Augusta’ which was sold as a limited edition print. ETW brought an action for trade mark infringement and infringement of his right of usage. On appeal in 2003, the court held that as a general rule a person’s image or likeness cannot function as a trade mark. It also dismissed the image right claim on the basis that the painting amounted to protected free speech (even for commercial use of names and images). However this case was decided on quite specific facts and can be contrasted to the case of Comedy III Productions Inc v Gary Saderup Inc where the court found that Saderup, an artist who had produced numerous merchandise items based on a charcoal drawing of the ‘Three Stooges’, could be restrained from using any likeness of The Three Stooges in lithographs, T-shirts, “or any other medium by which Saderup’s art work may be sold or marketed.” further prohibiting the artist from “Creating, producing, reproducing, copying, distributing, selling or exhibiting any lithographs …or other goods, products or merchandise of any kind, bearing the photograph, image, face, symbols, trademarks, likeness, name, voice or signature of The Three Stooges or any of the individual members of The Three Stooges. The only right of fair use was to the original charcoal drawing itself. The First Amendment right is to protect free speech, criticism, review and parody and “the right of publicity derived from public prominence does not confer a shield to ward off caricature, parody and satire. Rather, prominence invites creative comment. But equally the First Amendment is not in place to usurp the right of publicity. The point was well made in Edgar Winters v DC Comics (2003) when Chin J said what the right of publicity holder possesses is not a right of censorship, but a right to prevent others from misappropriating the economic value generated by the celebrity’s fame”.

 

THE PROTECTION OF PERSONALITY IN CANADA

Canada can be looked at in two parts. With its legislation close to French law, The Quebec Civil Code adopted a Québec-specific human rights legislation in 1975 which extends to relations between all persons in Quebec. These rights included the right to dignity, privacy and honour and reputation (Bordet, 2006 at http://www.law.ed.ac.uk/ahrb/personality/canada.asp). Within the “new” Civil Code of 1993, there is express provision for personality protection, which is seen as part of a right to integrity of the person which includes both physical and dignitarian aspects (such as the right to privacy and reputation). Outside of Quebec, Canada has a federal Charter of Human Rights but this only extends to relationships between the individual and the state. Until the early 1970s, Canadian case law closely followed the UK but in 1973 The Ontario Court of Appeal recognised that a professional sports player could sue for the appropriation of personality. In Kr ouse v Chrysler the court decided that there was no need to show false endorsement, but it was sufficient that the sportsman’s recognisable image was used in an advertisement without his permission. In Athans v Canadian Adventure Camps (1978) the right was extended further when a drawing of the water skier was used on publicity and marketing material for summer adventure camps. The court held that the use of the image was sufficient to infringe the individual’s rights, even though a relatively limited number of people would have recognised the water skier from the drawing.

 

THE EUROPEAN MAINLAND – FRANCE & GERMANY

France and Germany both have strong image and personality rights laws and unlike the US, European rights stem from individual privacy rights, which are intrinsically interwoven with the cultures of many European countries (see Weber, see Bloch, 2006 athttp://www.law.ed.ac.uk/ahrb/personality/france.asp). Over time such negative privacy rights – the right to prevent intrusion into a person’s private and personal life – have been adapted to become positive commercial rights – the exclusive right to receive income for use of one’s own name and image. Here one might note that the passing of the Human Rights Act 1998 has surely set the United Kingdom on a path that must lead to a similar position. That said in mainland European countries there is always a balancing act between unlawful commercial exploitation and legitimate free expression – the tension between articles 8 and 10 in the European Convention for Human Rights and that line is often unclear. In France provisions exist within the Civil Code for the protection of a person’s image (prior protection was given on the basis of torts). The footballer Eric Cantona was able to prevent the publication of a magazine bearing his image on the basis that the editorial comment on Eric Cantona was limited and the main purpose of the use of the image was to sell the magazine. However, editorial and biographical use will be upheld by the French courts as legitimate free speech. But in another case the singer Johnny Halliday was able to prevent a company using an old image on grounds of unfair competition – showing again that the position is that French law implies that a personal right may have economic aspects.

The German Constitution protects dignity and personality in Article 2 which again aims to balance the right to privacy and ‘personality’ against any other Constitutional right. An example of how the image right can be protected is the recent case where a Hamburg court held Electronic Arts could longer sell its FIFA World Cup 2002 game in Germany because goalkeeper Oliver Kahn did not give permission for his image to be used. The company had to compensate Kahn and withdraw the product from sale.

 

DOWN UNDER IN AUSTRALIA

Australia , like the UK, has no image or publicity enshrined in statute law. However the Australian courts have developed the law of passing off to something akin to a right of image and personality through a number of high profile decisions. In 1969 case of Henderson v Radio Corporation the defendant used a picture of the claimants as an album cover. The shot was taken whilst the claimants were professionally dancing.  The Australian High Court considered that customers of the defendants could be misled as to whether the claimants had approved or recommended the album and this was sufficient for an action of passing off. The leading Australian case is Pacific Dunlop Ltd v Hogan which was brought by Paul Hogan, famous for playing the movie character Crocodile Dundee. Pacific Dunlop, a shoe manufacturer, used a character dressed up in a costume similar to that worn by Hogan in the films in its TV advertisement campaign and one advert contained a spoof scene based on a famous scene from the Film. In 1989 the court upheld Hogan’s claim for passing off on the basis that the public would assume that Hogan had licensed or endorsed Pacific Dunlop to use the image of Crocodile Dundee.

In a second case involving Hogan and the character Crocodile Dundee ( Hogan andAnother v Koala Dundee) in 1988 the actor brought an action against the proprietors of ‘Koala Dundee’ stores. These stores sold T-Shirts and other items recognised from the films to be typical of those coming from the Australian outback. The stores’ logo was a Koala Bear in Crocodile Dundee ‘get- up’. Hogan sought injunction and damage as compensation and the court held that It is now the law of Australia, that the creator of a sufficiently famous character having certain visual or other traits may prevent others using his character to sell their goods and may assign the right so to use the character; furthermore, the inventor may do these things even where he has never carried on any business at all, other than the writing or making of the work in which the character appears’

Perhaps two recent cases from the USA and China show the complexity of the issues in image rights. In the USA motorcycle stuntman Motorcycle stuntman Evel Knievel is suing Kayne West for trade mark infringement over the latter’s ‘spoof’ “Evel Kanyevel” character and the suit claims trade mark infringement and that the West character “directly counter to Evel Knievel’s long-established public persona”. Conversely in China the brother of the late Emperor, Aisin Giorro Pu yi, has been unsuccessful on appeal in protecting the Last Emperor’s image rights after the appellate court held that because of the Last Emperor’s historical significance such rights were in the public domain.

 

TO LEGISLATE OR NOT? THAT IS THE QUESTION

My first thoughts about writing an essay on image rights came early last year when two different clients posed questions on this topic. In particular I was asked for advice regarding the DVD cover for the ‘ Glastonbury’ film which featured one (as then) unidentified festival goer covered in mud – a marvellous photograph and we knew we could secure the photographic copyright. But the question posed was this – was it safe to use the image without the permission of the subject in a long lasting form? This of course was pre McKennitt but asked the question – doesthe combination of a reinvigorated interpretation of trade mark law, the action in passing off against false appropriation of personality (approximating to the US protection of an ‘economic right’) and an actionable right of privacy create an image right in the United Kingdom? Do we have a strong and stable tripod on which to rest the camera of celebrity (or other’s) image rights? I have to say that when I wrote the advice it was hard to tell – and it still is!

All of the decisions which have created this three legged ‘image right’ are from our courts although of course two are interpretations of legislation. One could note that not one of these decisions has been tested at the highest domestic level – the House of Lords – so they are all still subject to debate and challenge although of course equally two came about as the result in decisions from the European Court of Justice and the European Court of Human Rights.

It is not unusual for our judges to ‘make’ the law and plug gaps which have not been covered by legislation: both Tolley v Fry and Irvine v Talksport continued this tradition. This action in passing off seems clear enough but the doctrine has not been expanded upon – and both of these cases were decided on the facts in front of the court. With Irvine it is debatable that the action might have failed had the photograph of the driver not been manipulated. Further to this worry there are the earlier ‘discredited’ cases McCullough v May (1947) and Wombles v Womble Skips (1975) which both said for an action to lie the image used and the business using the image without permission must be in the same field of activity – so the use of the name of a popular children’s entertainer as a breakfast cereal did not give rise to a cause of action – and neither did the use of the name litter collecting children’s character by a skip hire company. Hopefully for celebrities the confirmation of Irvine in the Court of Appeal puts this to rest.

Indeed it had been hoped that the action might be revisited when David Bedford, the middle distance runner who was successful in the 70s and famed for his striped singlet, long hair and drooping moustache, claimed his image had been used in an advert for the directory enquiries operator 118118 without his consent. UK media regulator Ofcom agreed with Bedford – but the matter did not reach the courts. Perhaps if the doctrine had been expanded upon this action itself might have been enough to protect a celebrity against others using their name, image or likeness for unauthorised commercial gain.

With trade mark protection It is hard not to agree with the technical approach of Sir Hugh Laddie in the High Court in Arsenal v Reed but, and once armed with thedecision from the European Court of Justice, it is easy understand the decision in the Court of Appeal. Of the three legs of the tripod this looks the most stable but – and in itself – trade mark law is not the complete answer to image right protection.

McKinnitt is based on Von Hannover and the precedent of the decision of the European Court of Human Rights. It is been this third ‘leg’ which is surely the most uncertain as any decision in privacy cases will be decided on the facts of the case and quite rightly must be subject to the tension between the Article 8 privacy right which will apply to matters which are private (which is open to debate) and the Article 10 right – the right of freedom of expression and the rights of the press to report on matters of public interest (the right of free expression) this latter right still further muddled by ongoing debate of what constitutes actually the ‘public interest’ and perhaps can be further questioned – should am economic image right really be based on a right to privacy?

There other areas of law which do, to an extent, support image or personality rights in the UK. Performers rights will, in certain circumstances, prevent the unauthorised recording and exploitation of performances. Copyright law can, of course, protect the ownership and exploitation of original works such as songs and sound recordings, literary works such as ‘official biographies’ and can protect audio visual recordings and commissioned photos. Conversely copyright law will (of course) also protect many photographs taken by third parties of celebrities without their permission and will protect the text in unofficial biographies (see Harrison v Polydor). It should also be noted copyright protection itself is subject to the doctrines of fair dealing in the UK and fair use in the USA and in the US to assertions of the First Amendment right to free speech.

The Trade Descriptions Act 1968 can go some way to prevent false endorsement; confidentiality agreements, data protection regulations and the law of contract can protect confidential information; and the UK’s defamation laws give a limited right to protection against untruths although not an absolute ‘right’ as any action is subject to certain defences such as justification, privilege and fair comment. But these laws along with passing off, trade mark law and privacy so seem to provide for a hotch-potch of image right protection – BUT NOT a clear self standing image or personality rights.

At the time of writing we can take a snapshot of the law and I would hesitate a guess that the use of passing off, trade mark legislation and privacy rights coupled with the allied rights identified above can, to a greater or lesser extent, protect celebrity image rights – especially when backed up with allied rights such as copyright, performers rights, data protection provisions and the law of defamation. But, and unfortunately for celebrities, this snapshot is not fixed in stone – and may well crumble if any of the three ‘legs’ of the tripod which support this ‘image right’ are re-defined by the courts – either domestically or in Europe and in particular if the right to privacy is again restricted or the balance of power swaps back to support the freedom of expression for the popular press. The Naomi Campbell case was a good example of how the courts struggle with this tension in this sphere. The eventual five – four split in the judiciary across the High Court (pro Campbell), Court of Appeal (all three Lord Justices pro MGM) and House of Lords (three law Lords for Campbell, the two more senior Law Lords for MGM) shows just how difficult the issue of privacy is.

We are now in a multimedia digital age where celebrity is all consuming and all consumed – and are of course of vital economic importance. At the same time we are in a world of ever reducing privacy as the global reach of the internet grows and the public’s seemingly endless appetite for gossip never seems to fade. On top of this, the publicity machines of film companies, record labels and celebrities themselves both use and abuse the press – and then reel in horror at the latest expose of their celebrity client! But the concept of an image right to allow for the commercial exploitation of image (rather than to control the press) is important. As recording artists (and indeed record labels) see their income from the sale of recorded music dwindling and are looking at developing new revenue sources – live music and merchandise are often touted alongside ‘new’ revenues from endorsement and advertising – and it could be argued that these new markets can only be fully exploited if there is a corresponding clear image or personality right. With the proviso that this writer wouldn’t want to see any erosion of basic press freedoms, maybe the time is right to turn to the UK Government and push for legislation which would set out clear self standing image right fit for purpose in the new millennium and this digital age.

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REFERENCES

Edmund Irvine v Talksport Ltd (2002) EWHC 367 [Laddie J, upheld by the Court of Appeal EWCA Civ 243]

(and see http://www.mewburn.com/downloads/newsletters/Mewsletter_Feb_03.pdf and http://www.sportsbusinesslaw.com/documents/Eddie_irvine.pdf)

Tolley v Fry (1931) AC 333 HL

Arsenal Football Club Plc -v- Reed (2003) Times Law Reports May 22nd

Application 2313504 in the name of Linkin Park LLC www.musiclawupdates.com Nov 2005

Manchester United’s manager fails to protect his own name on posters www.musiclawupdates.com Nov 2005

Lyngstand & Others v Anabas products and Another (1977) FSR 62

Elvis Presley Trade Marks Case ( 1999) RPC 567

Sutherland v V2 Music Ltd (2002) EMLR 28 and see http://www.mewburn.com/downloads/newsletters/Mewsletter_Feb_03.pdf

Niema Ash and another v Loreena McKennitt and others (2006) EWCA Civ 1714.

Von Hannover v Germany (2005) 40 EHRR 1

Campbell v MGN (2004) 2 AC 457 www.musiclawupdates.com June 2004

Douglas v Hello! (No3) (2006) QB 125 [53]

A v B & C (2002) EWCA Civ 337

McCullough v May (1948) 65 PRC 48 (‘Uncle Mac’)

Wombles v Womble Skips (1975) FSR 488 (1977) RPC 99

Harrison v Polydor (1977) FSR 1

Groves , P (2004) Intellectual Property: Protecting Image as a Trade Markwww.spr-consilio.com/art11.htm

Property, Privacy and Personality Research streams – Comparative Aspects of Personality Research Project and Case Studies http://www.law.ed.ac.uk/ahrb/personality/uk.asp the collection of legislation and case law dealing with personality rights and the protection of personality compiled by the AHRC Reseach Centre for Studeies in Intellectual Property Law, School of Law, University of Edinburgh: Detail from Richardson, M (Australia), Hardcastle, J (Canada), Bordet, S (Quebec), Bloch, P (France) and Weber, O (Germany).

Richard Penfold, Alex Batteson and Jeremy Dickerson (2005) Image Rights Overview: How to Defend Image Rights Managing Intellectual Property’s Brand Management Focus Supplement May 2005

And online (pdf) at http://www.dlapiper.com/global/publications/detail.aspx?ref=snapshot&pub=1940

Andrew Braithwaite and Sonya Pennington Image Rights: Do They Exist and Who Should Own Them? http://www.sportandtechnology.com/page/0035.html

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USA

Roberson / Rochester Folding Box Company (1902) 171 NY 538

Comedy III Productions Inc v Gary Saderup INC et al (2001) 25 Cal. 4th 387

Bette Midler v Ford Motor Co (1988) 849 F 2d 460

Onassis v Christian Dior (1984) 472 NYS 2d 254

ETW Corp v Jireh Publishing Inc (1998) 99 F.Supp.2d 829

Chiang, H Celebrities (2003) Image rights vs. First Amendment; Winter brothers challenge comic’s portrayal of them San Francisco Chronicle http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2003/05/13/MN273668.DTL

Edgar Winter et al. v. DC Comics et al.(2003) 30 Cal. 4th 881

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CANADA

Krouse v. Chrysler Canada Ltd. et al (1973) 5 C.P.R. (2d) 30; 1971 C.P.R. LEXIS 317 

Athans v. Canadian Adventure Camps Ltd (1978) 80 DLR (3 RD) 583

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AUSTRALIA

Henderson v Radio Corporation Pty. Ltd. (1969) RPC 218 SC (NSW)

Hogan and Another v Koala Dundee Pty Limited and others (1988) 20 FCR 314

Pacific Dunlop Ltd v Hogan and Another (1989) 23 FCR 553

Evel Knievel, Aisin Giorro Pu yi: www.musiclawupdates.com (January 2007 update)

The Glastonbury Film (dir: Julien Temple) www.glastonburyfestivals.co.uk

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My thanks to Dennis Collopy and Lawrence Harrison for their thoughtful comments on this article.