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.
Despite arising in the US context, the following example illustrates this need. Emily Ratajkowski recently spoke out about ‘reclaiming her own image’ in a powerful article recounting the dark, misogynistic, and underreported reality of the modelling world. Ratajkowski had posed nude for a photoshoot when she was only twenty years old and establishing herself in the modelling industry. The photographer later published a book containing these images after Ratajkowski became “Instagram famous”, with the aim of profiting off of her new-found popularity. She did not consent to the images being used for this purpose yet found herself without legal recourse.
Such exploitation is unacceptable. Some argue that celebrities lose the right to control their image since they choose to publicise other elements of their life, but this is unsympathetic to the sensitivity of these issues and implicitly supports an exploitative culture. Where dignitary interests are concerned, or where the nature of the use of the image causes justifiable distress, the law should step in to provide victims of exploitation with injunctive relief. However, the law should not go as far as to award a full-fledged property right in image. The interests in property rights are transferable, i.e. can be sold or given away. Bruni therefore maintains that this could lead to performers at early stages of their careers losing control of their identities by agreeing to “sell” their personas. Awarding proprietary interests could thus lead to the kind of exploitation of those in weak bargaining positions which I argue image rights should strive to protect.
Further reading:
Emily Ratajkowski’s essay on reclaiming her own image [CW: sexual exploitation]: https://www.thecut.com/article/emily-ratajkowski-owning-my-image-essay.html?fbclid=IwAR2FF-eKodTAF6ftcxaFMWnuIQZZP-A1BpshCYMf6Szb8nCABF7DcHFwur4
An overview of image rights: https://www.rocketlawyer.com/gb/en/quick-guides/image-rights
For an example of a high-profile dispute between a celebrity and a company, see the following pieces discussing Rihanna’s lawsuit against Topshop: a) A The Guardian article: https://www.theguardian.com/music/2015/jan/22/rihanna-topshop-tshirt-court b) The Court of Appeal’s judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2015/3.html