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Topshop's sale of Rihanna t-shirt was unlawful, agrees the Court of Appeal
Hilary Atherton

Following the Court of AppealÂ’s ruling that Topshop's sale of Rihanna's t-shirt was unlawful, Hilary Atherton, a lawyer specialising in Intellectual Property at Bird & Bird LLP, examines the background and implications of the case.

GENERAL MERCHANDISE

Topshop's sale of Rihanna t-shirt was unlawful, agrees the Court of Appeal

What's happened?
The Court of Appeal has found that the sale by Topshop of a t-shirt bearing Rihanna's image without her permission amounted to passing off and was therefore unlawful.

Why is it significant?
Before this case, it was generally understood that merely putting a celebrity's image on merchandise without their permission did not constitute an infringement of their rights. This case indicates that, while this general principle still applies, it is subject to exceptions in certain circumstances; namely where the use of the image amounts to a misrepresentation that the goods have been endorsed by the celebrity in question, making customers more likely to purchase the item on which they appear.

What's it all about?
Rihanna is a famous pop star and Topshop is a well-known high street fashion retailer. Topshop started selling a t-shirt in 2012 which had on the front an image of a photograph taken of Rihanna by an independent photographer. The photograph had been taken during the video shoot for a single on Rihanna's 'Talk That Talk' album, and showed the artist wearing the same clothing and headscarf as she appeared on that album cover. The video had received significant press attention in the UK due to an objection by the owner of the land on which the video was filmed about the risqué clothing worn by Rihanna.

Although Topshop had obtained a licence from the photographer, it did not obtain a licence from Rihanna, who brought a claim for passing off. Rihanna won in the High Court, on the basis that:

  • she had ample goodwill, the scope of which was not only as a music artist but also in the world of fashion, as a style leader
  • she had previously authorised clothing which had been available in Topman (Topshop's brother store) and had participated in a competition two years previously in which the winner won a personal shopping appointment with her at Topshop's flagship store
  • she had entered into an earlier agreement with the established high street fashion store River Island, under which she had agreed to design clothing to be sold in-store
  • the relationship between the image on the t-shirt and the Talk That Talk album cover and video would be recognised by Rihanna's fans. As such, the image was not merely recognisable as Rihanna, but could be taken for a publicity shot for what was at the relevant time a recent musical release
  • Topshop had had previous well-publicised collaborations with other style icons.

What do I need to know?
The Court of Appeal agreed that Topshop's sale of the t-shirt amounted to passing off, but its conclusion was very much tied to the particular facts of the case, above. While repeating the general principle 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, the Court of Appeal agreed that in this case Rihanna had overcome the "two critical hurdles" in a claim for passing off, namely:

  • the application of the name or image to the goods has the consequence that they tell a lie about the source of the goods; and
  • the lie must be material so as to have an effect upon the customer's buying decision.

In all the circumstances of the case, Topshop's sale of the t-shirt bearing the image of Rihanna amounted to a misrepresentation that Rihanna had endorsed it. The Court said the proposition that a famous personality has no right to control the use of her image in general does not necessary lead to the conclusion that the use of a particular image cannot give rise to the mistaken belief by consumers that the goods to which it is applied have been authorised.

What next?
While the decision might be said to widen the scope of 'image rights' in the UK, the general principle still stands that there is no "image right" as such under UK law. As seen in this case, there are exceptions to the general principle but these are likely to be tightly construed.

Two of the three Court of Appeal judges regarded this case as "close to the borderline", indicating that the outcome was highly dependent on the particular facts, in particular both Rihanna's past public association with Topshop and the particular features of the image itself. Nevertheless, it is likely that this decision will fuel further image right cases, particularly given that celebrities are increasingly branching out from their original field into the world of fashion.

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