An individual’s proprietary rights in his
personality are often referred as ‘image rights’. These rights give the power
of preventing others from making unauthorised use of name, likeness or other
personal attributes (such as physical or style characteristics, signatures,
nicknames or slogans associated with them). A person can exploit his image
rights in different ways, which can be merchandising, product endorsement etc.
or simply protect his reputation by not allowing others to use it without
authorisation.
In
terms of the new position in Guernsey, any personage[1] will
be able to register his one or more image rights. The definition of image in
the legislation is relatively wide; it would include names, signatures,
characteristics, likeness, gestures, photographs and even illustrations.[2]
The registration will give the person exclusive rights in the registered images,
and it can also be used to protect other unregistered images against
unauthorised uses by proving that people associate it with the person.[3]
There will be infringement of the protected image if the image has actual or
potential value and distinctiveness that can be recognised as being associated
with the registered personality by a wide sector of public, which can be in any
part of the world.[4]
The registered images will presumably have value and distinctiveness unless the
defendant proves otherwise.[5]
The burden is on the defendant to prove it. The infringement can also occur
where an image has been used which is identical and confusingly similar to the
protected image or similar to protected image and trying to take advantage of
its reputation or impairing the distinctiveness of the plaintiff’s image.[6] It does not matter whether the unauthorised
use is regarding sponsorship, for the purpose of marketing, endorsing, affixing
or packaging goods.[7]
The
IRO will allow the claimants to recover such damages which is equivalent to
“the actual prejudice the claimant has suffered due to infringement” after
considering all the relevant factors.[8] In
deciding the relevant factors, the court will take into account whether the
defendant knew or had reasonable ground to know that at the date of
infringement the right was registered.[9] The
court will also have the power to award such additional damages as the justice
of the case may require after having regard to all the circumstances and
seriousness of the infringement,[10]
However, there are some cases where the registered image rights would not be
infringed (i.e- fair dealing for the purpose of news report, satire, honest practice in trade, for the purpose of
research, art, temporary copies and for education). [11]
To
find out whether new image rights in Guernsey match with the notion of
property, it is important to know what property is. Usually, property
designates to those items which are confined and governed by the rules of
property institutions and attributes rights and liabilities on the owner of it.[12]
Property encompasses two functions use of things and allocation of items in of
social wealth and it will have two main characteristics- (1) ownership and (2)
right to exclude others.[13]
Historically, courts used to consider property as something that can be
restored to the dispossessed owner rather simply giving compensation for loss.[14]
In broader sense, property is something that concerns with the ownership of
object(s) which can be bought and sold, giving the owner of it exclusive right
to exclude others from making any kind of interference with it.[15]
However, physical existence of the object might not be necessary while share in
a company is considered as property though the physical existence of share
certificate itself values very little.[16] In
addition, something can also be recognised as property if it gives rise to a
right of action.[17]
Something can also be property where the owner of it has sufficient control
over the use of it.[18]
The protection of image rights may depend mainly in the exclusion of others
from interfering with it because the courts in the UK are protective in
recognising new aspect of proprietary rights.[19] So,
it can be said, property is ownership or quasi-ownership interest in things
(either tangible or intangible) which confers rights over such things to
exclude all-comers and rights to gain monetarily form them.[20]
Now
there can be many justifications for recognising image rights as property. It
will be ideal to compare the protection of image rights in Guernsey with the
notions of property to find out whether they can be accommodated. The common
law trespass rule to protect the right of the author should exist there. According
to Locke, misappropriation or free-ride on someone’s property amounts to theft
or unjust enrichment and should give rise to action in law.[21] If
someone is owner of something, he would have power of transmission, inter vivos or death to another.[22]
The Ordinance has recognised image rights as proprietary rights[23]
and the image rights can be considered as property for many reasons. Where,
Fraser provides his justification for proprietary right in image on the basis
of economic value of those.[24]
But rights on a fictional character and rights on your own personality may be
different in some aspects. There may be some rights which do not have any
substantial market value but very important to the person (i.e. right of
privacy). So, some may disagree with this notion of property. Jeffy argued,
though images may generate considerable financial benefits, it should not
automatically infer a proprietary right on those.[25] The
value on someone’s image comes from wide public acceptance rather from any
specific labour, skill or investment by the person.[26]
However, Fraser contests this argument, according to him commercial value of
image can be a by-product of public acceptance but it might have taken
considerable investment of time and efforts to get this acceptance, and that
should justify control over it or exploitation of it.[27]
Most
of the image rights in Guernsey will certainly have monetary value which can be
assigned and licenced. Hiring a car can be a good example of this, where the
person who is renting the car has right to use it reasonably but the ownership
is not transferred to him and the car is still a property to the owner.
Similarly, image right can be licenced to people giving them right to use it
but would not get exclusive right of ownership. Although, licencing might be
limited in some cases but it is allowed for most of the image rights and
licencing will bind the successors in title.[28] Image
rights will be registered like other real properties or trade mark.[29]
It is personal or moveable property[30],
and it can be assigned in the similar way.[31]
There also can be co-ownership of image rights by two or more persons jointly
or by a group[32],
which can be replaced by another person when co-owned by a group[33].
Another important aspect of property is taxability and ability to licence the
property.[34]
What is certainly allowed by the new legislation of Guernsey.
The
new legislation in Guernsey has changed this perception where anyone can
register their images and get for protection for those. It has certainly expanded
the scope of protection by giving the registered person exclusive right and
control over but there is any case yet to come to the court to see its
potential. The legislation has codified the image rights, and it has also
classified the infringements when it will automatically give rise to right of
action. However, the scope of exception is still wide enough to justify many
breaches of image rights, which might question the exclusive control on
property as the person would not be able to resist trespassing into his
property. On the other hand, registration of the rights has given the person
ownership on those rights. Just like real properties, a person can assign,
licence or transfer it during his life time and can automatically bind the
successors in title. All these qualify saying that image rights match with the
notion of the property unless there is any justification for trespassing.
[1]
The Image Rights (Bailiwick of Guernsey) Ordinance, 2012 (IRO) s.1 A natural or
legal person including such person(s) who has died within last 100 years or any
two or more persons who are perceived to be intrinsically linked or who are perceived to be
linked in a common purpose and who form a group or any fictional human character.
[2] The Image Rights (Bailiwick of
Guernsey) Ordinance, 2012 (IRO), s.3(1)
[4] IRO s.28(1)&(2)
[5] IRO s.28(3)
[6] IRO s.27(1)
[7] IRO s.27(4)
[8] IRO s.49(2)(a)
[9] IRO s.49(1)
[10] IRO s.49(3)
[11] The Image Rights (Bailiwick of
Guernsey) Ordinance, 2012. S.31
[12] C Harpum & Others, The Law of Real Property (7th
ed. Sweet & Maxwell, 2008) p.2, 1-002.
[13] JW Harris, Property and Justice (OUP, Oxford 1996) pp.4&5.
[14] C Harpum & Others, The Law of Real Property (7th
ed. Sweet & Maxwell, 2008)p.6, 1-011 (though it later recognised the
interests on land is also real property, page-7)
[15] R Smith, Property Law (7th ed. Longman
Pearson, Essex 2011) p.3-5.
[16] Ibid p.4
[17] Ibid p.5 (money in a bank
account can be good example of it)
[18] Yearworth v North Bristol NHS [2010] QB 1 para-25, 45, 60. In this case, Y claims against N for damaging
his semen by careless storage. The question before the court was whether semen
should be considered as property or not. The court ruled where it was
deliberately produced for using later and the claimant had sufficient control
over its use or destruction it should be considered as property and he is
entitle to damages.
[19] As above 51, p.6 para-1&2.
[20] JW Harris, Property and Justice (OUP, Oxford 1996) p.137
[21] C Colston & J Galloway, Modern Intellectual Property Law (3rd
ed. Routledge, Abingdon 2010)p.736
[22] JW Harris, Property and Justice (OUP, Oxford 1996) p.46.
[23] IRO ss.5(1) & 110
[24] Ibid, p.737
[25] P Jaffey, ‘Merchandising and the
Law of Trade Marks’ [1998] IPQ 240.
[26] A Story, ‘Owning Diana: From
People’s Princess to Private Property’ [1998]
5 Web JCLI, http://webjcli.ncl.ac.uk/1998/issue5/story5.html (accessed 28/02/13)
[27]As above No.57 p.737 para 4.
[28] IRO s.61
[29] IRO s.1(1)(e)
[30] IRO s.51(1)
[31] IRO s.52(1)&(2).
[32] IRO ss.53, 54 &55.
[33] IRO s.1(3)&(4).
[34] JW Harris, Property and Justice (OUP, Oxford 1996) p.140, para3.
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