Publicity and Image Rights in Scots Law
| Date | 01 September 2010 |
| Published date | 01 September 2010 |
| Pages | 364-384 |
| Author | Gillian Black |
| DOI | 10.3366/elr.2010.0302 |
The commercial exploitation of name and image has become commonplace in recent decades. Companies typically harness the reputation and glamour of a celebrity in order to promote their goods and services. David Beckham was allegedly paid $20 million for his promotion of Emporio Armani underwear.
Evidence of such deals can be hard to come by: online articles and blogs give this figure for the Emporio Armani deal. See e.g.
Recent examples involving
It is necessary to start by examining the nature of the commercial exploitation. What is its subject matter, and to what use is it put? Thereafter I will turn to the legal response in other jurisdictions before considering a range of possible legal actions in Scotland that may be relevant to publicity. The article concludes with a suggested home for publicity and image rights in Scots law.
Of course, this approach assumes that there is indeed a problem in search of a solution – something which many writers in the field would dispute. While acknowledging the absence of legal protection, their response would be that no protection is required or justified.
H Carty, “Advertising, publicity rights and English law” [2004] IPQ 209; H Beverley-Smith,
See further G Black,
Before exploring solutions it is first necessary to set out the problem. This involves a detailed examination of what is involved in publicity exploitation in practice. Regardless of jurisdiction or legal system, publicity practice in the Western world involves the use of some identifying feature of the individual in order to promote or publicise a product, service or event. Thus, the twin elements to be defined are use and subject matter.
While writers have devised a range of categories reflecting the types of exploitation practised, the essential nature of this exploitation can be reduced to three categories: media use; promotion and advertising; and merchandising.
Writers typically recognise variations on these categories, but the essentials can be reduced to these three practices: see O Goodenough, “Retheorising privacy and publicity” [1997] IPQ 37 at 41–42; Carty (n 3) at 216–217; Beverley-Smith,
Media use is exemplified by Jennifer Lopez's exclusive licence to
See
Promotion use focuses on advertising and promotion deals, such as David Beckham's advertising and endorsement of products as diverse as soft drinks (for Pepsi) and sport-related products such as football boots (for Adidas). Here the company is paying for the individual to “tell … the relevant public that he approves of the product or service or is happy to be associated with it. In effect he adds his name as an encouragement to members of the relevant public to buy or use the service or product.”
See A Milligan,
Merchandising use can be illustrated by the vast number of calendars, t-shirts, mugs, posters and so forth featuring the names and images of pop, film and sports stars.
A good example is the Jonas Brothers, a boy band from America, who have a website (
In the words of the Trade Marks Registry: see G Black (published as G Davies), “The cult of celebrity and trade marks: the next instalment” (2004) 1∶2
[2002] 1 WLR 2355 at para 9.
A porcelain plate bearing her image could hardly be thought of as being endorsed by her, but the enhanced sales which may be achieved by virtue of the presence of the image is a form of merchandising.
When there is public use of an individual's name or image, that use can be reduced to one of the categories just described: it will concern exploitation either in the media, or through the promotion or advertisement of goods or services, or by way of merchandising when the name or image is attached to goods.
In all cases, the use must be public. Private use may give rise to distinct legal issues, but it is not relevant to the question of publicity. The requirement for public use is implicit in each of the three uses discussed above: none could be achieved by keeping the relevant publication, promotion or merchandising private. Public use does not, however, equate to commercial or for-profit use, since a charity or other non-profit organisation could make use of an individual to promote its cause without seeking directly to raise income.
Having identified the uses through which publicity exploitation takes place, we may now do the same for the subject matter: what exactly is being exploited? A leading American commentator, J T McCarthy, asks (and answers) the question in this way:
J T McCarthy, “Public personas and private property: the commercialization of human identity” (1989) 79 Trade-mark Reporter 681 at 689.
What aspects of human identity does the right of publicity protect? It protects anything by which a certain human being can be identified. This covers everything: personal names, nicknames, stage and pen names, pictures, and persona in a role or characterization. It can also include physical objects which identify a person … And the Bette Midler decision
J T McCarthy,
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