Rihanna v. “Topshop”:
Implications for Celebrity Image Right of Publicity in the U.K.
“Protecting Fashion Designs: Fashion Law Basics for Lawyers and Designers”
Seminar at Bloomingdale’s Century City
(Sept. 18, 2013)
In July 2013, , the U.K.’s High Court of Justice entered a judgment for singer Rihanna, who had filed a 2012 lawsuit complaining about the unauthorized use of her image for t-shirts sold by popular British retailer Topshop. Excerpts from this judgment are attached.
Unlike the United States, the United Kingdom does not recognize a general right of publicity that would require them to seek permission of Rihanna, as the photograph’s subject, prior to creating such t-shirts. Given that context, Topshop argued that its having obtained rights from the image’s photographer (a paparazzo who shot the picture while the singer was taping a music video in a public location) was sufficient to allow it to market the t-shirts. Therefore, to prevail under U.K. law, the singer had to show that Topshop was “passing off” its t-shirts as being authorized or endorsed by Rihanna, that this would mislead the public, and harm the singer’s goodwill. Despite well-settled British precedents suggesting a contrary result, Rihanna’s lawyers (Reed Smith, U.K.) succeeded in doing so. Topshop’s lawyers (Mischon de Reya, U.K.) have told the press it plans to appeal.
In a detailed opinion (in which Justice Birss was very specific in explaining that no new U.K. right of publicity had been created), the Court found Rihanna had a carefully-planned fashion and branding empire, was selective in choosing co-branding or endorsement partners, and had album artwork and a video with similar imagery as the t-shirt photo. In this cumulative context, the Court held:
“If, as I have found, a substantial number of purchasers are likely to be deceived into buying the t-shirt because of a false belief that it has been authorised by Rihanna herself, then that will obviously be damaging to the claimants’ goodwill. For one thing it amounts to sales lost to her merchandising business. It also represents a loss of control over her reputation in the fashion sphere…. It is a matter for the claimants and not Topshop to choose what garments the public think are endorsed by her.” (emphasis added) Justice Birss found it more likely than not that a “substantial number” of buyers might be deceived into purchasing the t-shirt by mistakenly construing that it had been approved and endorsed by Rihanna. He specifically referenced Topshop’s well-known marketing strategy of creating association between celebrities and its fashion products in the press and public mind, noting that less potential confusion would have occurred had another retailer without such publicity practices sold the t-shirt.
In the wake of this opinion, U.K. clothing manufacturers must now proceed with greater caution in incorporating images into clothing, as their territory’s historically blasé approach to protecting celebrity imagery must now pass a stronger standard framed in implied endorsement doctrine, as Justice Birss’s ruling makes clear. U.K. retailers and product lines typically liberal in use of celebrity images on or adjunctive to their products will need to be particularly careful in how they proceed, especially in cases in which their brand is one heavily-identified generally with celebrity/pop culture, or if other factors exist (such as the celebrity’s having been photographed at their store or public events, as in Rihanna’s case) that may give rise to an appearance of an endorsement relationship.
Whether or not categorized as a “new” U.K. right of publicity protecting celebrity imagery, the net impact may well be a commensurate one in practical effect.
1 Case No. HC12F01378, High Court of Justice, Chancery Division – Intellectual Property (Hon. Mr. Justice Birss) (United Kingdom, July 31, 2013). Arcadia does business under the retail name of “Topshop”.
2 © 2013 Nancy L. McCullough, Esq.