Rihanna tests image rights in English law

August 2013

Artists, merchandise

Rihanna has succeeded in an action against TopShop, after asking the High Court to issue an injunction against the UK retail chain to prevent further sales of T-shirts bearing her likeness. The complaint, against Topshop’s parent company Arcadia Group Brands Limited, was in relation to a line of products which featured a photo of Rihanna, taken by a freelance photographer “without her permission” while on the set of her music video We Found Love in 2011. It was argued that the image used on the T-shirts was “very similar” to pictures included on CD sleeves for her album Talk That Talk, on which the single is featured, and therefore could have duped fans into thinking the products were licensed by the star and as such amounted to passing off, and likely to have damaged her reputation with fans once they discovered it was not a “genuine” piece of merchandise with an “emotional connection to their heroine”. Topshop’s legal team argued “We resist the claim on two main bases; first, this is, in substance and reality, an impermissible attempt by Rihanna to establish an image reproduction right in the UK. There is no such right. “On the contrary, Topshop are entitled honestly to sell the garment, having obtained the necessary copyright license. Secondly there is no representation here, given that the garment is fashion wear and not promotional merchandise.” Some might disagree with Topshop’s first argument given the favourable decision to Formula 1 drive Eddie Irvine inIrvine v Talksport – and it’s going to be an interesting case. Rihanna is seeking £3 million in damages and a ban on any similar products bearing her likeness being sold by Topshop. She also demanded that all existing items be destroyed.
Mr Justice Birss ruled that a “substantial number” of buyers were likely to have been deceived into buying the T-shirt because of a “false belief” that it had been approved by the singer. He said it was damaging to her “goodwill” and represented a loss of control over her reputation in the “fashion sphere”.  In a two-minute judgment Mr Justice Birss, said there was “no such thing as a general right by a famous person to control the reproduction of their image. The taking of the photograph is not suggested to have breached Rihanna’s privacy. The mere sale by a trader of a T-shirt bearing an image of a famous person is not an act of passing off. However, I find that Topshop’s sale of this T-shirt was an act of passing off”. Mr Justice Birss did not make an assessment of damages in his ruling.
Irvine v Talksport Limited [2003] EWCA Civ 423
Robyn Rihanna Fenty v Arcadia [2013] EWHC 2310 (Ch).

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