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Who controls the use of my image?

By Caragh Deery - Law Student @ St Hilda's College, Oxford


[CW: sexual exploitation]

An image right is a right that equips an individual with the legal means to control the exploitation of their own image or likeness. In the 21st century, thanks to the borderless transmission of information facilitated by the digital age, celebrities have become common points of reference for millions. Marketing-savvy companies have recognised the significant commercial value that can accrue in celebrity image itself. Nowadays, it is impossible to open an application such as Instagram without being confronted with a dozen promotional posts where influencers are raving about their new “favourite” teeth-whitening kits, diet teas, or over-priced hair vitamins. Such trends in marketing strategies have led many jurisdictions to protect image rights in some form, but this is a trend the UK has refused to follow.

The lack of any single umbrella right to protect image rights results in claimants in the UK having to rely on a medley of unconnected and pre-existing statutory or common law rights such as trademarks, breach of confidence, and passing off. The nature of these rights is beyond the scope of this piece, but the key idea is that this hotchpotch of rights was not designed to capture the fluidity and globality of celebrity image. The result has been that many claimants are left without legally enforceable rights when their image is exploited. The time has come for the UK to recognise an independent and doctrinally tidy image right.

Several normative arguments have been raised in favour of protecting image rights. Gangjee identifies the core reasons why an individual might justifiably object to non-consensual commercial use of their image: (i) to protect privacy interests; (ii) concern about harm to dignitary interests; and (iii) feeling unduly deprived of an opportunity to commercialise their image and share in the profits. In particular, I argue that there is a strong need to protect dignitary interests.