Breaking news – the Court of Appeal has rejected the appeal brought by Arcadia and upheld the High Court’s previous judgment that Topshop’s sales of T-shirts bearing Rihanna’s image (although correctly licensed in copyright terms) amount to passing off.
You may recall that In 2012 Topshop started selling – both in its stores and online – a T-shirt bearing the image of Rihanna. Topshop had secured a licence from the holder of the copyright in the photograph, but had not asked Rihanna for permission to use her image.
Rihanna brought proceedings, claiming that a substantial number of people buying the t-shirt would think that she had endorsed it when, in fact, it was not connected with her at all. The High Court ruled in her favour.
Yesterday’s Court Of Appeal decision confirmed that there is in English law no “image right” or “character right” which allows a celebrity to control the use of his or her name or image. This means that a celebrity seeking to control the use of his or her image must therefore rely upon some other cause of action such as breach of contract, breach of confidence, infringement of copyright or, as in this case, passing off.
The Court of Appeal found that the High Court had applied the law correctly by stating that it is not a necessary feature of merchandising that members of the public will think that the products in issue are in any sense endorsed by the celebrity or creator of the character in issue. What is required, instead, is in the first place that the claimant has a relevant goodwill and that the impugned activity involves a false representation that there is a connection between the claimant and the goods in issue of a relevant kind, that is to say that the claimant is materially responsible for their quality. This false representation must have a part in the purchasers’ decision to buy.
So whether this really is ‘the Last Song’ and ‘Farewell’ in this ‘Mad House’ litigation, or whether Arcadia will take further steps in this ‘Photographs’ litigation – we shall ‘Wait our Turn’ and see. It seems to us that there are not ‘Complicated’ legal issues to hear tried and that Arcadia’s chances of further appeal to the House of Lords are ‘Fading’.