The T- Shirt Found No Love – Rihanna Wins in Court

International singing star Rihanna (Robyn Rihanna Fenty to the court) won a lawsuit in July in England against the Top Shop stores over the manufacture and sale of an unauthorized T-Shirt bearing her image. Merchandise (such as T-shirts, jackets, buttons) is a very big business; so the respective rights of celebrities and merchants are important. I frequently work on licenses and litigation in this area and know firsthand how valuable these rights are – and how seriously infringements are taken.

In the United States, celebrities routinely win such cases because the US recognizes a celebrity’s “right of publicity” — that’s the right to control most commercial exploitations of a celebrity’s name, likeness, and biographical details.

So a court victory in the US by a celebrity over unauthorized merchandise wouldn’t be newsworthy. But in the United Kingdom there isn’t that kind of right of publicity. Rather, the UK protects against the “passing off” of merchandise if, for example, it appears that the merchandise is being authorized (or as they write the word in the UK, “authorised”) and endorsed by the celebrity. The plaintiff needs to establish an element of deceit, in other words. Merely using the celebrity’s image without authorization isn’t enough to incur liability the way it could in the US.

In the UK celebrities have a much more limited right to control use of their images on merchandise. In other words, this case is news. And not just because it involves the always-in-the-news Rihanna.

The court described Rihanna as “a world famous pop star. She has a cool, edgy image. Through her companies she runs a very large merchandising and endorsement operation.”

High Court Justice Birss wrote “although I accept that a good number of purchasers will buy the t-shirt without giving the question of authorisation any thought at all, in my judgment a substantial portion of those considering the product will be induce to think it is a garment authorised by the artist. The persons who do this will be the Rihanna fans. They will recognize or think they recognize the particular image of Rihanna, not simply as a picture of the artist, but as a particular picture of her associated with a particular context, the recent Talk That Talk album. For those persons the idea that it is authorised will be part of what motivates them to buy the product. I am quite satisfied that many fans of Rihanna regard her endorsement as important. She is their style icon. Many will buy a product because they think she has approved of it. Others will wish to buy it because of the value of the perceived authorisation itself. In both cases they will have been deceived.”

The question existing is will the case establish new UK law? It might embolden other celebrities and style icons to push courts to find liability. Time will tell whether or not the case makes UK law more complicated.

In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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