Do image rights exist in the UK?

Celebrities, sportspeople and entertainers alike often face a battle to prevent their personality and image being used without their consent. So, are they able to use an image right to enforce their rights against potential infringers?

To give the short answer… no. There is currently no such thing as a standalone image right in the UK. However, there are a number of different IP rights which individuals can use to protect their likeness, and a combination of these rights can often provide strong protection against infringers looking to take advantage of your favourite celebrity’s image.

Is there a need for image rights?

Rights protecting a person’s image are important for three main reasons:

(i) To prevent brands from associating themselves with a person without paying a licence fee;

(ii) To derive commercial income from exploitation of the person’s image while maintaining control, exclusivity and value; and

(iii) To ensure that the income is taxed in the most appropriate way.

How can I protect my image rights?

Trade marks

Trade marks are a useful way of protecting names, signatures, nicknames, logos developed to identify a celebrity, or graphical representations of a celebrity. Examples include Roger Federer’s ‘RF’ logo, the silhouette of Usain Bolt’s ‘lightning bolt’ pose, and the motion mark filed by Cole Palmer’s management on 25 November 2024 for his ‘cold’ celebration (it will be interesting to see if this one makes it through to registration).

It is not always possible to protect image through trade mark protection for all goods and services. For example, the UKIPO has previously refused registrations for ‘mere image carriers’ such as posters, photographs and similar goods, on the basis that the goods do not all emanate from one ‘official’ source.

Passing off

Passing off can be used where the name or image of a famous person has been used without permission to endorse or advertise a product.

In order to succeed in a passing off claim, the person must show that:

(i) They have a reputation or goodwill among the UK public (this can be demonstrated if the person typically commands fees for other product endorsements);

(ii) A third party makes or intends to make use of their image in a way that is likely to lead to the public believing that the product is offered or endorsed by the famous person; and

(iii) The misrepresentation has caused or is likely to cause the famous person harm (i.e. through the loss of the fee they would otherwise have charged).

Copyright

Copyright is of limited use in protecting image rights, but it may come in handy to protect signatures, letters, diaries and designs/logos. Copyright may also offer protection for photographs or videos where the celebrity owns the copyright.

Performers’ rights also offer a method for a person to control the dissemination or exploitation of their performances, which include dramatic or musical performances, or a reading or recitation of a literary work. This is likely to be relevant for entertainers rather than sportspeople, as sport is not generally considered a dramatic work and therefore there is no ‘performance’ for the purposes of performers’ rights (with some exceptions, like ice dancing and synchronised swimming).

Privacy and breach of confidence

Public figures may be able to assert their rights to privacy and breach of confidence to protect their image. Use of private information by a third party to exploit its commercial value without the permission of the individual can give rise to a cause of action for breach of privacy/confidence, and mere intrusion on an individual’s privacy may also be actionable.

Data protection

The UK GDPR provides various rights in respect of protection of personal data, which individuals may be able to rely on to prevent unauthorised publication of photographs or videos bearing their image. They can object to the processing of the personal data, which would encapsulate the publication and any conceivable use of the material, provided there are no grounds the publication can rely on to override the interests of the data subject, for example public interest.

Defamation and malicious falsehood

A claim for defamation or malicious falsehood may be possible where an individual’s name or image is used without permission in a manner which is false or misleading or may bring them into disrepute.

In an action for defamation, a claimant must show that the statements complained of:

(i) Are defamatory (i.e. they lower the claimant in the estimation of right-thinking members of society and must have caused, or be likely to cause, serious harm to the claimant’s reputation);

(ii) Identify or refer to the claimant; and

(iii) Are published by the defendant to a third party.

Advertising

The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) and the UK Code of Broadcast Advertising (BCAP Code), published by the Advertising Standards Authority (ASA), contain specific provisions regarding the use of images of individuals that can be invoked by members of the public where they have been portrayed or referred to in ads without permission. The only recourse they can get from this is to potentially remove the offending ad; there is no direct cause of action or remedy.