NewsLine Column: Celebrities – Are they Worth It?
Advertisers have always used celebrities to market their products. However, the rich and famous are becoming increasingly keen to protect their image, meaning that brands must tread carefully to avoid expensive legal complications. Marina Palomba, legal director of the IPA, explains…
The unauthorised use of celebrities has become a big issue in advertising over the past year, as the rich and famous have increasingly sought to protect their image. Until recently celebrities have shied away from bringing expensive and risky litigation, unlike their American counterparts, but are times changing?
While there is no such concept as “personality rights” in English law, as in many other European countries and the US, there has been an extension of the law of privacy with the introduction of the Human Rights Act and the Data Protection Act, but also as a result of a couple of high-profile High Court decisions in this area. The most notable is the Eddie Irvine case against talkSPORT radio.
Eddie Irvine complained about the unauthorised use of his image and won. Some commentators have called this a watershed with the law finally recognising personality rights. However, the case has not changed the position as drastically as at first thought. Poor Eddie Irvine was only awarded £2,000 damages and ended up paying legal costs of several hundred thousand. Somewhat of a pyhrric victory but nevertheless the principle of loss of goodwill was established.
The case does not completely prohibit the unauthorised use of celebrities in advertising. There were rumours in August that Ian Botham was intending to sue the makers of Guinness for allegedly exploiting his image in a national advertising campaign. He complained Diageo used images of him in the Ashes series in 1981 without his permission. The important point to note was that there was an allegation that the ads suggested Botham was endorsing the product. The case appears to have settled out of court, no doubt both parties wary of the costs and vagaries of the law as a remedy.
In order for a celebrity to bring a successful claim of “passing off” three elements have to be established: loss of goodwill, misrepresentation and damage. Some celebrities, especially those with no merchandising career, and certainly most politicians, will struggle to prove the necessary elements of goodwill and damage. Most importantly if there is clearly no implication of endorsement of the product advertised then a claim for passing off will not succeed, as the Spice Girls discovered some time ago.
Some celebrities, such as David Beckham, have registered their names as a trademarks but even this protection is limited and has yet to be properly tested and enforced in the advertising context. The ITC, CAP and RAC codes of conduct ought not to be disregarded in all this legal wrangling, but these codes, while imposing justifiably limitations, do not prohibit an absolute ban on reference to celebrities and politicians.
Advertising agencies have used celebrities and politicians in creative, humorous and intelligent ways and it would be a loss to us all if this creativity were prevented. Humour and satire in advertising in the UK contributes to what makes British advertising some of the best and most entertaining in the world. Thus, while genuine rights should be protected it appears the law has got the balance about right at present.
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