Image-conscious? Moi? Celebrities turn legal eagles to gain self-control

British courts have been slow in recognising image rights. But with big money at stake, things could soon change
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The Independent Online

According to reports emanating from Old Trafford, the England captain David Beckham is holding out in his contract renewal negotiations with Manchester United for extra pay in respect of his "image rights". So far in this country, the courts have not given much recognition to these supposed rights. However, many see them as a key area in the future, as sport becomes more an arm of the entertainment industry.

Image rights first came to prominence in the UK when Arsenal signed Dennis Bergkamp and David Platt in 1995. Instead of breaking its strict wages structure, the club agreed ancillary deals with companies owned by the players, under which it paid additional sums for the exploitation of the players' image rights and for various promotional services they provided.

The term "image rights" covers an assortment of supposed legal rights relating to commercialisation of a celebrity's name, personality and image. The problem for football players seeking to assert such rights is that they are not really recognised in UK law. The copyright in any picture (unless assigned) belongs to the person who took it, not the person photographed. Various other legal actions, including trademark infringement and libel, have been used by celebrities in the past in attempts to prevent the unauthorised use of their names and images, but with very limited success.

In 1997, the Spice Girls failed in a legal action against an unauthorised sticker book. The judge rejected their argument that since the words "not authorised" did not appear on the cover, the public would believe the book to be endorsed by the members of the group. Similarly, in 1977, the Swedish pop group Abba failed to obtain an injunction preventing the sale of unauthorised merchandise because the court was not convinced that people would take it to have been approved by them. Without the claimant being able to show that the public will be deceived in this way, such actions remain unlikely to succeed.

In other countries, the famous have far greater protection. The law in most US states has long recognised publicity rights for celebrities. The Diana Memorial Fund was successful in California in preventing the production of unauthorised Diana memora- bilia. France, Germany, the Netherlands, Italy and Australia all offer some sort of similar protection to celebrities.

The inclusion of arrangements dealing with image rights in players' contracts has potential advantages for the players and the clubs. Payment for these rights can be tax efficient, since they can be structured in order to avoid national insurance contributions.

Also, some see an assignment of image rights as a way of tying players to clubs after the court case in which the Belgian player Jean-Marc Bosman successfully argued that he had the right to move to another club at the end of his contract without a transfer fee being charged. In the post-Bosman era of freedom of movement of players, the logic is that a club would retain the image rights for a player even if he exercised his right to play for another club. As the revenue from these rights becomes more important, the transfer of a player on a substantial income may not in fact be feasible without the rights being assigned as well.

Beckham is not new to the idea of trying to forge new legal rights for his potential commercial benefit. Last summer, he and his wife Victoria successfully obtained an injunction preventing a national newspaper publishing unauthorised photographs taken inside their house. The injunction was granted under privacy laws under the Human Rights Act.

Controversially, the newspaper was prepared to agree not to publish the photographs but wanted a similar assurance that the Beckhams would not themselves allow pictures of the interior of their house to be published. The newspaper argued that it could accept that the Beckhams could retain their privacy but saw no reason why it should be restrained from publishing the photographs if they were simply going to allow similar pictures to be published elsewhere. The court disagreed and imposed the injunction without requiring any such assurance from the Beckhams.

In a similar case, Hollywood stars Michael Douglas and Catherine Zeta Jones sought to prevent the publication of unauthorised pictures of their wedding in Hello! magazine on the basis that it was an invasion of their privacy. They had previously sold the rights to OK!. While the Court of Appeal refused to restrain Hello!, it did express sympathy for the claim, and an action for damages continues.

This week, supermodel Naomi Campbell was also in court for her privacy action against The Mirror over the publication of a photograph of her leaving a Narcotics Anonymous meeting. These cases suggest that, in certain circumstan- ces, celebrities may be able to use the developing area of privacy law to create some form of image rights.

The issue continues to be contentious. It was rumoured that the proposed transfer of another United player, Dwight Yorke, to Middlesbrough fell through due to disagreements over his image rights. But with both clubs and players seeking to maximise revenues, image rights are going to become an even more important issue in the world of football.

Dan Tench is a media and sports lawyer at Olswang.

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