A nervous disposition
Q: What do James Bond, Ant & Dec, the Mobot, the Spice Girls and Usain Bolt’s signature arrow pose all have in common?
A: Shortly they may all be registered on the world’s first image rights register in Guernsey.
New legislation, which is subject to final approval of the island’s legislative assembly this month, will mean that from 3rd December 2012, any natural or legal person or any two or more persons who are perceived to be intrinsically linked or who form a group or any fictional human character will be registrable in Guernsey as a ‘registered personality’. It will also be possible to register one or more ‘registered images’ against a registered personality, for example a name, signature, likeness, gesture, mannerism, expression, personal attribute, photograph or illustration. The registered proprietor will then have a legal property right in that registered personality which can be assigned and licensed in the same way as a trade mark. In addition it will have exclusive rights in the images which are either registered against or associated with the registered personality.
An image of a registered personality can be infringed if it i) has actual or potential value or ii) is distinctive in that it is recognised as being associated with the registered personality by a wide sector of the public in any part of the World. If an image is registered against a registered personality, then it is presumed to have value and be distinctive, unless proven otherwise. A registered personality or image will be infringed by any use (for example for the purposes of advertising) of any image which is identical or confusingly similar to the protected image.
Despite celebrity endorsement being big business in the UK (you can rarely open a newspaper at the moment without seeing one of our Olympic stars gracing its pages), this country does not recognise an ‘image right’ per se. Instead a personality will protect and defend their image through a combination of rights including trade marks, privacy rights and passing off and may commercially exploit their image by licensing a clearly defined set of rights to a third party to use certain aspects of their image to promote products or services.
The onshore effect of Guernsey’s World first remains to be seen. Online businesses could well find themselves infringing the rights of personalities in Guernsey if their promotional material and/ or goods and services can be accessed or bought in Guernsey, even if there is no infringement of a personality’s right in the UK. This could of course have an adverse impact on Guernsey’s economy if businesses choose to simply block access to their websites from Guernsey to avoid the problem. Will a Guernsey rights holder be able to sue a non-Guernsey domiciled infringer for unauthorised use of its registered rights in the UK when this does not constitute an infringement of UK law? This seems unlikely. The more probable consequence of this legislation is that this new property right will be used for tax planning purposes and we may see more celebrities and sportspeople taking advantage of the favourable tax jurisdiction and assigning their registered image rights to Guernsey companies. Perhaps most interesting is the question as to whether the UK will follow Guernsey’s lead in the future.
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