David Bedford, the former 10,000 metre world record holder has benefited from a ruling by the UK media regulator, Ofcom, that his image (long hair, drooping moustache, red socks and striped singlet) were used without his permission by the owners of the 118118 phone director, The Number. The number have invested million in advertising their service which is now the UK’s most popular director of enquiries. Ofcom is not in anyway a court, and this is not a judicial decision, but the regulator found that the high profile adverts featured a caricature of Mr. Bedford. Advertising rules state that no living person may be portrayed, caricatured or referred to in advertisements without their permission. Mr. Bedford now plans to take legal action against The Number for damages of ,000. Aberdeen Amateur Athletics Club whose club kit features a two red striped singlet identical to that used in the advertisement have already reached an out of court settlement with the Number.
COMMENT : Ofcom’s decision has re-opened the debate on image rights in the United Kingdom. Even as early asTolley v Fry (1931)[AC 333 HL] a amateur golfer, Tolley, 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. Racing Driver Eddie Irvine’s successful claim in passing off against TalkSport Radio for using his photograph in a promotional brochure resulted in 000 damages and the court held that Irvine had ‘a property right in his goodwill which he can protect from unlicensed appropriation consisting of a false claim or suggestion of endorsement of a third party’s goods or business’. In 2002, former cricketer Ian Botham won an out of court settlement from Business after it used photographs of him without permission to endorse their business. Other jurisdictions including the US (see the two cases cited below), France and Italy already have image and personality rights: in the Australian case of Henderson v Radio Corporation (1969) the Supreme Court of New South Wales held that a professional dancing couple could stop the unauthorised use of their photograph on a record sleeve without having to show financial loss. The Ontario Court of Appeal recognised that a professional sports player could sue for the appropriation of personality (see Krouse v Chrysler (1973) and Athans v Canadian Adventure Camps (1978)). It will be interesting to see how UK law develops.
See The Guardian February 9th 2004 Media p10
Law Updates November 2004
US: Midler v Ford Motor (1988) 849 F 2d 460
US: Onassis v Christian Dior (1984) 472 NYS 2d 254