LLM Sample Dissertation

The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 1

THE CONUNDRUM RELATING TO PERSONALITY RIGHTS AND THE ROLE OF

BREACH OF CONFIDENCE IN ITS DEVELOPMENT IN THE UNITED KINGDOM

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CHAPTER 1: INTRODUCTION

1.0 Definition of personal rights and breach of confidence concepts

Personality right or the right of publicity is generally described as the ability to regulate

the use of an individual’s name, image, likeness, voice or other unequivocal of one’s identity1.

This implies that an individual has the right of publicity that deters their image and likeness from

commercial exploitation without their permission; in this relation, the privacy rights protect the

individual’s personality from public representation without their consent. Washington State

Legislature under Chapter 63.60 RCW asserts that every individual or personality has the

property right in the use of their name, voice, signature, photograph, or likeness2. According to

the German law, personality rights represent the sundry of regulations that protects an

individual from an authorized public exposure.

Actually, the Higher Regional Court of Hamburg (5 U 51/11) categorized these rights

into three domains; core, private, and social. The “core” provisions under the German Law

protects all aspects of an individual’s intimate life while the “private” sphere includes other

aspects of private life such as family life; and “social” sphere includes social and business life.

The Canadian Law under the Civil Code of Quebec 1994 asserts that right to privacy is equated

to right to life and every person is obligated to respecting the reputation and the privacy of the

other person3. In fact, in Greece taking a photo or video even without necessary reproducing

them, or sculpturing individuals in paintings, results to an illegal act under the Article 57 of the

Greek Civil Code (57 ΑΚ, 57 Αστικός Κώδικας).

1 McCarthy The Rights of Publicity and Privacy s 7:22 at 7-46 2d ed 20022 "Washington Statute 63.60. Personality Rights". Rightofpublicity.com. 1998-01-01.3 Conroy, Amy M. (2012). "Protecting Your Personality Rights in Canada: A Matter of Property or Privacy?". Western Journal of Legal Studies (University of Western Ontario) 1 (1)

https://en.wikipedia.org/wiki/University_of_Western_Ontario

http://ir.lib.uwo.ca/uwojls/vol1/iss1/3/

http://ir.lib.uwo.ca/uwojls/vol1/iss1/3/

http://rightofpublicity.com/statutes/washington


Breach of confidence on the other hand represents the common law tort that protects

individual’s private information that should be confidential4. Consequently, when such

information is disclosed, an individual has the legal liability to make claimants under the breach

of confidence. This law applies when the plaintiff provides evidence that the information is not

in public domain, it is confidential, and that it was disclosed without authorization. The English

law allows individuals to make claims when their confidentiality has been breached if they can

ascertain that the information had the magnitude of confidence, that it was provided under the

obligation of confidence, and that it was disclosed without individual’s authorization.

Information that is regarded as “not being in the public domain” means that it is essentially

inaccessible to the public5. Leaking of “some information” is still considered a breach of

confidence and it can be sued in a court of law. Personally rights and breach of confident are in

most instances intertwined and aim at protecting an individual’s right to privacy. Generally,

personality rights and breach of confidence regulations are recognized in various countries

around the Globe including the People’s Republic of China, South Africa, Jamaica, and France

among others. Therefore, personality rights are integral provisions especially in the regulations

of celebrity endorsements and commercial dealings.

In this connection, this study exploits the extent or the recognition of personality rights in the

United Kingdom. This implies that the study will conduct critical analysis in determining

whether these rights are exclusively established in the English law and how they can be

significantly improved to benefit the society at large. Personality rights are fundamental in the

4 . Wright, Tort Law and Human Rights (Oxford: 2001); W.V.H. Rogers, ‘Tort Law and Human Rights: A New Experience’, in H. Koziol and B.C. Steininger (eds.), European Tort Law 2002 (Vienna/New York: 2003), pp. 35–64.

5 Ibid


commercialization of products and services especially where public figures endorse companies6.

The essay begins with delineating the definition of personality rights and breach of confidence.

The study continues to elaborate the emergence of personality rights and how they affect the

legal system. The paper then elaborates the research problem or the gap witnessed in how

personality rights are handled in the United Kingdom in comparison with other jurisdictions.

This will enable the investigator in finding out whether personality rights are beneficial in

protecting commercialization of personality and provide coherent recommendations to the UK

legal system.

1.1 Research Problem

It has already been identified that the image of any individual is a powerful tool in conveying

cultural experience, political commitment, raising awareness on social aspects, and even

promoting products and services. Basically, trading with one’s personality commands hefty

prices making it a strong market tool. David Beckham is purported to have received $20 million

for his advertising deal with Emporio Armani in 2007 while it is estimated that Tiger Woods

earned $99,737,626 in 2009 deals alone. Based on the huge sums of money and the seriousness

of the business involved in publicity practice, there is a desire for strong legal regulations

controlling the use of image and individual’s personality? However, courts and legal

stakeholders in the United Kingdom are quite reluctant to identify and land on a common legal

response on publicity7. Despite the provisions set in the personality rights act in other countries,

UK courts do not seem to side with public figures when they are seeking compensations for the

breach of their confidence.

6 Kontopoulous M., The Right of Publicity, Morality and Free Speech: An ‘Uneasy’ Relationship, 20027 Weber O, “Human Dignity and the Commercial Appropriation of Personality: Towards a Cosmopolitan Consensus on Publicity Rights?”, (2004) 1:1 SCRIPT –ed 178


In Anna- Farid Lyngstad & Ors v Anabas Products & Anor [1977] FSR 628, the renowned

pop group made claims over the production of T-shirts and badges bearing their name and

photograph of the group. The plaintiff based their argument on the provisions of passing off

since personality rights are not fully-fledged in the UK law; however, the pop group had not

begun the business prior to the suit. The court rejected the plaintiff’s sort for relief and protection

of their property rights citing Henderson/Radio Corp. Pty. Ltd [1969] RPC 218 and Totalisator

Agency Board/Turf News Pty. Ltd [1972] RPC 5989 in which there was proof of a common field

of activity in the claim. Similarly, in the case of McCullouch v Lewis A. May Ltd10, the court

decided that there was nothing like commercial protection right to a personality, rejecting his

claims over exploitation.

The flawed personality rights cases are endless that have faced unhappy ending in English

courts. These included Byron v Johnston11 – use of the poet Byron’s name on a publication of

poems (allegedly) written by another poet; Wilkie v McCulloch. In a similar case of David

Beckham v In Touch Magazine, the plaintiff lost the case against the tabloid in connection with

an article claiming he had an affair with a woman described as a former prostitute. The court

rejected case on the grounds that the claimant did not prove enough the magazine acted

recklessly after being noted that Beckham had won a similar case in Germany.

In Naomi Campbell v Mirror Group Newspapers, MS Campbell sort court interpretation on

breach of confidence by the magazine publishing information about her and photographs without

her consent. In this case, the court found out that there is a possibility of breach of privacy for an

8 Anna- Farid Lyngstad & Ors v Anabas Products & Anor [1977] FSR 629 Henderson/Radio Corp. Pty. Ltd [1969] RPC 218 and Totalisator Agency Board/Turf News Pty. Ltd [1972] RPC 59810 McCulloch v Lewis A May [1947] 2 All E.R. 8411 1822-1824 2S (SC) 413

http://www.theguardian.com/football/2011/feb/15/david-beckham-magazine-libel-judge



entity to publish personal information without their approval. However, the court had to

exclusively determine if the information was confidential. In the similar breadth, the case of

Irvine & ors v TalkSport ltd [2003] EWCA Civ. 42312, Eddie Irvine, a popular formula one

driver, raised claims against Talksport over damages in passing off. The defendant had exclusive

rights to broadcast the championship where the driver was participating. However, the company

embarked on a promotional campaign where they reproduced brochures with the driver’s image

on the front page. The court in this case sided with the claimant and sort for compensation over

damages of passing off13.

Arguably, the United Kingdom legal system has not settled on how to handle cases involving

personality and breach of privacy14. Some courts have held that an individual is not entitled to

commercial rights while others have found out there was a breach of confidence such as in Irvine

& ors v TalkSport ltd [2003] case15. Various scholars have found out that the UK Law does not

provide a coherent or consistent protection of a celebrity’s personality or image. The courts are

observed to be reluctant in giving individual’s monopoly rights in nebulous concepts such as

names, likeness or popularity. There are various laws that exist in UK protecting intellectual

property rights and individuals against defamation; consequently, these provisions do not

exclusively protect celebrities from commercial exploitation16. There is also confusion in the

English Law on various aspects such as right of publicity, law of passing off, right to privacy,

property rights; hence, celebrities are in a quagmire as they do not know the specific law that is

12 Irvine v Talksport Ltd [2003] 2 All ER 88113 Carty H., 2004, “Advertising, publicity rights and English law”, I.P.Q. 2004, 3, 20914 Weber O, “Human Dignity and the Commercial Appropriation of Personality: Towards a Cosmopolitan Consensus on Publicity Rights?”, (2004) 1:1 SCRIPT –ed 178 15 Irvine v Talksport Ltd [2003] 2 All ER 88116 Boyd S., 2002, “Does English law recognise the concept of an image or personality right?”, Ent. L.R. 2002, 13(1), 1-7


protecting them. As a matter of fact, the English jurists should formulate a concrete and reliable

law that can be followed in protecting celebrities from commercial exploitation and from their

private information being disclosed to the public without their authorization.

1.2 Tracing the development of personality rights

1.1.1 Historiography of the Personality Rights in Europe

The legal doctrine surrounding personality rights can be dated back to the sixteenth

century during the codifications of European jurisdictions. Most of law scholars believe that

personality rights are an ancient concept that has only gained popularity in the late 20th century.

Reinhard Zimmermann asserts that the doctrine was initiated during the mediaeval period under

the actio injuriarum in Roman Empire that protected individuals against non-material interests

that included dignity and honor17. Johannes Voet says that Dutch jurists assimilated the concept

from the Romans in seventeenth century that distinguished between real and verbal

representation18. In France, an individual was entitled to compensation as a remedy for what was

known as amende honorable aequum.

Personality rights were later witnessed in the German law during the shift from civil law

to criminal law in the nineteenth century. Zimmerman asserts that the German Civil Code made

it a crime to disclose individual’s information through the famous phrase “thrown out by the

front door…has managed to sneak in through the window19.” The Scottish law also realized

personality rights through the case of retention of dead babies’ organs. This emerged after an 17 Zimmermann (eds), A History of Private Law in Scotland vol 2 (2000)18 t p1064; Voet, Commentarii ad Pandectas 47.10.119 Zimmermann (eds), A History of Private Law in Scotland vol 2 (2000)


argument on whether privacy rights were violated when scientist used dead babies’ organs in

research.

The English law relied more on Aristotle findings that allocation of honor depends on

distributive justice. Traditionally, claimants against honor were dependent on behaviors that

affected a person’s reputation such as insult in the public among others20. Detraction also meant

that something done in secret was not supposed to be reviled without the stakeholders’ consent.

This implied that the personality rights were more of distinguishing whether interests were in

secret or in public domain. In 19th century Germany, scholars were more focused on degenerating

the original sources of Roman law not alienated by canon and natural law. This meant that they

focused on freedom of contract, economic rights and compensation of pecuniary loss and

protection of honour submitted to criminal law. Austria, Greece, and Italy adopted the German’s

decision in 20th century21. The English common law of torts the protection of individual’s honor

and reputation has been traditionally protected by the defamation law. By the end of 19th century,

most of the European countries could distinguish the personality rights in terms of bodily

integrity, physical liberty, and rights in family life and sexual relations. However, despite the

tremendous evolution of personality rights, the English Law has not formally embraced a tort of

breach of privacy even though the Human Rights Act (1998) has played a significant role in

creating awareness22.

1.1.2 Recent development of personality rights

20 G. Samuel, ‘“Le Droit Subjectif” and English Law’ (1987) 46 Cambridge Law Journal 264.21 F.G. Jacobs and R.C.A. White, The European Convention on Human Rights (4th edn., Oxford: 2002)22 J. Wright, Tort Law and Human Rights (Oxford: 2001); W.V.H. Rogers, ‘Tort Law and Human Rights: A New Experience’, in H. Koziol and B.C. Steininger (eds.), European Tort Law 2002 (Vienna/New York: 2003), pp. 35–64.


Personality rights have gradually gained popularity and have made impeccable impact in

today’s world. The emergence of celebrities endorsing businesses gave the rights of publicity

huge popularity and recognition around the globe. Arguably, celebrities and public figures work

extra hard to create a reputation and build an appealing image to their audience. As a result, they

are sort for endorsement in order to increase the sales of a product or create awareness of a new

product in the market. The audience associates the product endorsed with the character and the

personality of the celebrity and any misuse of their name, image or style may adversely affect the

impression they create about the product. For this purposes, celebrities invoke personality rights

as property rights that protects them from such exploitations and misuse of their persona. In

many cases, celebrities register their personality and gain exclusive rights to exploit their image.

Any act creating a likelihood of association with the registered image or their distinct

characteristic would amount to infringement of right to personality. In a recent case, The Court

of Appeal of Paris made a famous ruling on the football player Eric Cantona case that “the right

to privacy enables any person, regardless of reputation and profession, to oppose the

circulation, without express consent, of his image as part of his personality.”

The protection of individual’s right to privacy is viewed on a continental approach through

the European Convention on Human Rights (ECHR), European Court of Justice (ECJ), and

European Court of Human Rights (ECtHR). This collaborative effort came into existence after

the discovery that various countries viewed personality rights differently where others offer

protection in distinct fashion. In similar vein, the historical chronology of personality rights also

shows that “new” human interests are slowly crawling into the legal systems. There are some

emerging issues in the social life that need to be addressed in their legal aspects. For instance,

issues such as personality merchandising are quite current but very popular in the socio-cultural


context. Personality merchandising is a marketing aspect where “real” characters are used in

commercial activities.

This concept has increasingly become the 21st century strategy of marketing products and

services based on its ease in capturing the attention of potential customers. This situation allows

eventualities such as commercial exploitation or revealing of too much information that is

sometimes considered private. It is a concept that has been generally accepted as an international

tort. This implies that personality rights have evolved from the traditional concept that involved

insulting or disregarding an individual’s honor and dignity to a more commercialized aspect

where people sell their personalities. It is undisputable that personality rights and breach of

confidence are fundamentals in personality merchandising and legal systems need to develop

coherent structures and procedures to protect the involved entities.

CHAPTER 2: THE SITUATION OF PERSONALITY RIGHTS IN UK AND THE ROLE

OF PASSING OFF


2.0 Introduction

As observed earlier, the legal doctrine protecting person’s from the exploitation of their

confidentiality and publicity has been existence for many decades. A sundry of provisions have

been set up in order to regulate how people use each other’s information and private information.

Since the 20th century, the society has been obsessed with fame and celebrity status as they have

become icons and fashion setters23. They have immense influence in the society and they use

they status to influence individuals regarding their behavioral patterns. Business entities realized

this aspect and decided to use it for the purposes of gaining more sales or popularity within their

market boundaries. This strategy did not frustrate and it has become a norm for celebrities to

become brand ambassadors and they are paid for it. This is attributed to the similarity in price

and quality of commodities and the inclusion of celebrities make consumers differentiate the

products or have a special attachment with the product being advertised. A celebrity who has

endorsed a business entity presents a distinguishable rapport with the media from her normal life

as established by Lord Hoffman in Campell v. MGN Limited; “what she sell is herself, her

appearance and her personality24. In fact, advertising agents use celebrities as a competitive

advantage in order to gain a commercial advantage.

Unfortunately, business entities find themselves misusing the personality of a celebrity or

even using their images or likeness without their consent. In cases where all the organizations are

utilizing the endorsement strategy for their business objectives, legal systems must be structured

to protect the entities. In various instances, celebrities rely on the personality rights in protection

23 Barnett The American Right of Publicity and Visual Art: Solutions for the Growing Conflict Paper Prepared for Congress of International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP) New Delhi 6-8 October 2002

24Campbell (Appellant) v. MGN Limited (Respondents) [2004] UKHL 22


of their rights in case of breach of agreement. Some countries such as the United States of

America streamlined such laws in mid-20th century. Conversely, the English law has distanced

itself from embracing commercial reality in the realm of personality rights. The United Kingdom

to be specific has remained skeptical in creating monopoly rights that protects an individual’s

personality25.

Celebrities in UK have been subdued to exploitation due to lack of stringy rules for

commercial exploitation against names, likeness, images, and even voice. Since 1869 U.K.

copyright law has not been effective in protecting an individual’s name. The court maintained

that it did not recognize the absolute right of a person to a particular name in the case Du Boulay

v. Du Boulay 186926. A century later, English courts denied Elvis Presley Trademarks, Inc.27 an

application for trademark registration arguing that there is nothing like copyrighting a name. The

English law has continuously differed with other nationalities in how it treats personality rights.

2.1 Current laws protecting personality features in United Kingdom

Unlike various jurisdictions around the world, the United Kingdom justice system has

vehemently failed to intervene with the exploitation of image or other attributes of an individual;

whether living or dead. In 1931, the case of Tolley v. JS Fry & Sons LTD opened the discussion

regarding person’s right of publicity in United Kingdom. It was found out that most of the

frameworks protecting rights of publicity are patched from various existing laws which include

the following.

2.1.1 Trade Marks Act 1994

25 H Beverley-Smith et al, Privacy, Property and Personality, 200526 2 L.R.-P.C. 430 (1869). Du Boulay v. Du Boulay27 Elvis Presley Trade Mark [1997] R.P.C. 543 at 556


UK Trade Mark Act 1994 Section 1(1) provides that any sign with the ability to distinguish

products and services of a person’s undertaking from another, including word, design, numeral

and shape of goods, can be registered by a distinctive character28. Trademark laws serve the

purposes of protecting the originality or the source. However, trademarks become invalid when it

involves famous people as the personality of the public figure is much considered to the identity

of the origin rendering the law inapplicable. A good example is tourists visit the city of London

and buy a magazine bearing the image of the royal family they are buying the likeness of the

image and pay little regard to the particular source29.

Similarly, trade mark rights are given on a first-come-first served basis; in case of identical

names they may receive no protection. Trade mark act under section 11(2) (b) indicates that use

of a mark as an “indication concerning…characteristics of Ent. L.R. 166 the goods or services

will not infringe.” This implies that if the name is registered for one purpose such as singing, the

same name can be registered for other purposes such as acting by a different entity. This was

illustrated in the case of Bravado Merchandising Services Ltd v Mainstream Publishing

(Edinburgh) Ltd `2588; the pop group “Wet Wet Wet” had protected the trademark of their books.

They were unable to prevent their name to appear on other book covers as their own book would

not protect the “other characteristics of the book.”

2.1.2 Copyright Designs and Patents Act 1988

28 Trade Marks Act 1994, s.3(1)(b)29 . Wright, Tort Law and Human Rights (Oxford: 2001); W.V.H. Rogers, ‘Tort Law and Human Rights: A New Experience’, in H. Koziol and B.C. Steininger (eds.), European Tort Law 2002 (Vienna/New York: 2003), pp. 35–64.


Law scholars argue that copyright law appeared to be the perfect law protecting people

against personality rights. The law was subsequently rejected by the English Law in various

instances such as the Corp v. Exxon Insurance Consultants International Ltd case in 1982 with

the jury denouncing the existence of copyright protection over names, voice, likeness or other

aspects of persona. In 1988, the Copy Design and Patents Act (CDPA) sort to offer protection to

photographs, drawings, films, and sculptures of celebrities30. However, the exclusive rights are

provided to the creator of the works and not the owner of the image or the voice represented as

illustrated in section 9(1) of the CPDA 1988. The celebrity only gains the copyright after the

works have been commissioned to him or her as stipulated in section 85 of CPDA 1988.

2.1.3 Passing off

This is the most commonly sort law by the celebrities in the United Kingdom when they need

personality rights exploitation. Passing off is viewed as the closest provisions that has grounds

for protecting right of a personality. It prevents an individual from passing off goods and services

as somebody else’s for financial gains31. This law is made up of three building blocks that

include goodwill or reputation, misrepresentation, and damages. The House of Lords made it

clear in the Jiff Lemon case that:

“The goodwill or reputation must be incorporated to the goods or services of the claimant,

the misrepresentation must lead to the confusion as to the source of goods and services, and that

confusion must cause damage to the claimant.”

This explanation however implicates that an individual cannot prevent exploitation without a

commercially valuable reputation or goodwill. This means that people who do not have status in

30 The Report on the Law of Copyright and Designs. HMSO, 1977. Cmnd.6732.31 H Beverley-Smith et al, Privacy, Property and Personality, 2005


the society are not protected in this law; hence, it does not achieve the aspect of equity.

Secondly, a celebrity will find it challenging to proof the existence of a common field of activity

between the parties for them to establish there was misrepresentation and confusion created

which would eventually lead to the case’s failure. The issue of “common field of activity” was

borrowed from the case of McCulloch v. Lewis A May (Produce Distributors) Ltd after the

plaintiff sort to protect the use of his radio’s name “Uncle Mac” from being used by the produce

distributors to promote their cereals32. The judge ruled that there was no common field where the

two activities could interfere with each other; hence, the plaintiff lost the case. It becomes a huge

challenge to express whether there was a common field of activity especially when seeking

compensation from commercial exploitation33. This law is observed as protecting individuals

with goodwill or reputation subsists in their trading of products or services and not within the

persona.

Davies and colleagues finds it challenging for scholars to determine the legal relationship

between property and personality34. English courts have persistently argued that commercializing

memorabilia by third parties without the celebrity’s permission is permissible and cannot be

equated to passing-off35. They have argued that celebrities do not contribute to the quality of the

goods or content being sold, only that people buy because they know the image; hence, credits

should go to the produces and not the celebrity image depicted. Nonetheless, courts seem to

change their position such as in the case of Irvine v. Talksport Ltd. Irvine was able to protect his

image from being used by the entity in their promotion as the contract was only to broadcast the

32 Davies, G., The Cult of Celebrity and Trade Marks: the next instalment (2004)33 JT McCarthy, The Rights of Publicity and Privacy, 2nd ed, 200034 Davies, Margaret Jane & Naffine, Ngaire (2001) Are persons property?: legal debates about property and personality, Ashgate p. 1635 Gary Scanlan, “Personality, Endorsement and everything: The Modern Law of Passing Off and the myth of the Personality Right” [2003[ E.I.P.R. 563


championship. The judge in this particular case did not go further to establish a common field of

activity but ruled in favor of the plaintiff.

2.1.4 Defamation

In relation to the right of privacy, defamation was constituted in 1931 after the case of Tolley

v. Js Fry Ltd. The defendant had published a story that indicated the plaintiff had pad for the use

of his image in an advertisement which was alleged to diminishing his amateur status in golfing.

More recently, celebrity Paul Mckenna sort compensation for damages after the Daily Mirror

claimed that his PhD was bogus and purchased from an American University36. Unfortunately,

this law only protects people after tarnishing their name and status by incorrect representation. It

is not suitable for protecting people against the appropriation and exploitation of one’s

personality.

2.2 Personality rights in the United Kingdom: Current situation

Historically, since the case of Boulay v du Boulay37 English law has considered the use of

another person’s name is a situation that it cannot redress. There is no piece of evidence that

shows that the English law has made efforts in drafting laws that warrant rights to personalities

such as voice and image since various claims such as Elvis Presley Enterprises Inc. v Sid Shaw

Elvisly Yours cases38 in 1999. When the world welcomed the 21st century, there was much hope

that the English legal system will change its mind and embrace personality laws. On a turn of

events, the case by David Bedford claiming a public offence by the directory enquiries just left

36 Michael Horsnell, “McKenna sues over claim he bought PhD”, The Times July 11, 2006. Available at www.times.co.uk37 1869) L.R. 2 430 PC38 [1999] R.P.C. 567


many disappointed39. The most cited cases regarding tort on personality, Irvine v Talksport and

Douglas v Hello, seems not to fulfill the heralding of image rights in the UK. Irvine decision is

more of a passing-off ruling than the warrant of personality rights since the presiding magistrate

Laddie J mentioned “The sort of cases which come within the scope of a passing off action has

not remained stationary over the years ... Passing off is closely connected to and dependent upon

what is happening in the market place.”40 This implies that the role of passing off has been quite

effective in making claims against image rights and false endorsement in the country as in Irvine

case. This has prompted British celebrities to seek redress using this provision in instances where

they feel their personality rights have been infringed. Unluckily, passing-off lacks the ability to

provide a cause of action for unauthorised merchandise and right to privacy.

The privacy aspect of personality rights is also on the rock bend in the United Kingdom

despite various efforts to recognize the law41. The case of Kaye v Robertson42 illuminated this

concern in 1990 when it was decided; there was little protection of privacy in UK. There were no

torts available for protection against privacy infringement and if they were the freedom of

expression outweighed them. For instance, in David Beckham v In Touch Magazine case, the

plaintiff lost the case against the tabloid in connection with an article claiming he had an affair

with a woman described as a former prostitute. The court rejected case on the grounds that the

claimant did not prove enough the magazine acted recklessly and that the defendant had

exclusive freedom of expression. The plaintiff lawyers noted that Beckham had won a similar

case in Germany Even after the development of Human Rights Act of 1998, there is no clear

39 R. Penfold, A. Batteson, J. Dickerson ‘How to defend image rights’ M.I.P. 2005, 148 Supp (Brand Management Focus 2005), 19-2140 David Rose and Emily Shaw ‘Misappropriation without misrepresentation’ NLJ 154.7119(386)41 R. Penfold, A. Batteson, J. Dickerson ‘How to defend image rights’ M.I.P. 2005, 148 Supp (Brand Management Focus 2005), 19-2142 [1991] FSR 62



regulation that seems to protect the invasion of privacy. Notably, personality rights can be

viewed from a two perspective dimension; privacy and publicity43. The case of Douglas v Hello44

seems to be a combination of privacy and publicity spheres of personality rights. This is one of

the issues that have affected the appropriation of personality rights in the UK. There is no a clear

distinction of privacy and publicity practice when it comes to protecting an individual’s persona.

On the contrary, the American law clearly defines the privacy and publicity rights and links them

in personality rights.

Modern UK judges are bearing the ancient mentality in regards to the right of privacy.

Lord Justice Mummery in his decision on R v Wainright in the Court of Appeal stated that he

predicts serious definition and conceptual problems if the judicial system allows the inclusion of

a new tort that incorporates such wide range of situations45. He continued to add that he is

guaranteed that nobody, the public, parliament, the press, wants a creation of a new tort that

would be challenging to solve. On the same matter of privacy, Lord Hoffmann raised his

contribution on this matter asserting that common law cannot be deduced specific definitions and

the witnessed gap can be filled by the judicious development without necessary having to create

a general tort in privacy. Wainwright sort compensation for damages for strip-searches by prison

warders which he argued that it interfered with his personal privacy. The county court had found

the prison staff guilty of interference with the plaintiff’s privacy and did constitute a tort of tress;

however, this decision was lifted by the court of appeal. The presiding judge is said to have been

quick to reject any tort quoted by Wainwright in his complain.

43 Hazel Carty. ‘Advertising, Publicity Rights and English Law’ Intellectual Property Quarterly 2004 at p.212.44 Douglas v Hello! Ltd (No. 5) [2003] E.M.L.R. 31, 642, 720, 72145 [2001] EWCA Civ. 2081, at para. 42


In a similar situation, Gordon Kaye v. Andrew Robertson and Sport Newspapers Ltd46, a

renowned actor Kaye wanted the court to stop the sport newspaper from publishing photographs

of injuries he had sustained in an accident. The plaintiff wanted the court to redress the

application of various torts including libel, trespass, and nuisance. Resultantly, the court only

found out the defendant was guilty of malicious falsehood but the other torts were rejected. The

jury argued that no tort of privacy existed in English law; hence, the actor only received a limited

remedy47. In this case, justice was not adequately served as the plaintiff only received a limited

compensation. The several cases looked at clearly illustrate that the recognized torts failed to

give adequate protection to the plaintiff despite numerous efforts to realize the privacy issues48.

More importantly to note, there is no distinctive differentiation of publicity practice and privacy

rights in the UK law49. Whereas courts try to embrace the realization of privacy violation such as

in Naomi Campbell and Irvine case, the lack of laws continuously frustrate their efforts. As a

result, the courts have chosen the narrow path of giving inadequate protection rather than going

ahead to develop a tort of privacy and that of personality rights.

Individuals in the UK are turning on to other laws with the aim of image and other

elements protections. This is because the issue of commercial exploitation is still rampant and

celebrities have to protect their hard earned reputation that brings them food on the table. For

example, a recent case involving Rihanna v Topshop where the latter was sued for selling T-

shirts with Rihanna’s image without authorization was stopped in 2012. Based on her evidence,

she was able to stop the sale following the passing-off and breach of confidence arguments50.

46 [1991] FSR 6247 McCarthy, The Rights of Publicity and Privacy, para 1:348 J. Beatson and Y. Cripps (eds.) The Freedom of Expression and Freedom of Information, (Oxford: OUP, 2000), p. 27249 A. Morgan, “Privacy, Confidence and Horizontal Effect: “Hello” Trouble” (2003) 62 (2) Cambridge Law Journal 44450 Hazel Carty. ‘Advertising, Publicity Rights and English Law’ Intellectual Property Quarterly 2004


People are also turning into trade mark registration but as observed earlier, it has numerous

limitations; hence, it cannot cover all the aspects of commercial exploitation. Celebrities who are

registered in groups such as musician bands are also in the receiving end when they vulnerable to

dispute or break-up. There are no laws defining who will bear the group name, logos, and

signature in case of such an eventuality.

In this context, a British band named One Direction was in a dilemma when it had a US

tour and found another local band in California registered under the same name. In light of this,

there are few cases where claimants have won when seeking compensation on damages to their

image rights using the passing-off law or other related provisions in the UK51. It is discernable

that the UK response to publicity rights is of questionable nature and somewhat opportunistic. In

most instances, business entities have ended up triumphant even after clear cases of exploiting

the celebrity. The current laws are not a remedy enough to the prevailing situation since the only

cases that have been ruled in celebrity’s favor are countable52. Therefore, it is still unclear if the

UK courts will be able to address the conundrum surrounding the aspect of personality in the

near future.

CHAPTER 3: THE ROLE OF BREACH OF CONFIDENCE IN ITS DEVELOPMENT

3.1 Breach of confidence

This law recognizes that when an individual or a group conveys information in confidence

they expect it to remain private. If a person realizes that there is a potential breach, they can have

an injunction to prevent the disclosure. Consequently, if the act has already happened the

individual can go to court for compensation. In the absence of tort of privacy in UK, breach of

51 Frazer “Appropriation of Personality – a New Tort?” (1983) 99 LQR 281 at 281.52 Beverley-Smith, The Commercial Appropriation of Personality, (2002 ) at 3


confidence remains as the equitable remedy53. The English law stipulates that breach of

confidence occurs when confidential information surfaces in circumstances that would be viewed

as unfair it was disclosed to others. Breach of confidence is observed as a violation of duty that

would constitute a civil claim54. It is mostly connected with the disclosure of information that has

commercial value but can also incorporate personal information about individuals. Some

scholars argue that breach of confidence is adjunct to intellectual property and can give

additional protection where copyrights are incapacitated.

Breach of confidence is increasingly be embraced in protecting tort involving privacy as

witnessed in Wainwright v Home office55 and Campbell v MGN cases. There are various

interpretations that have resulted from cases established in breach of confidence approach. For

example, even where the recipient acquires information from a legit source, it is paramount for

the recipient to know that the information is reasonably regarded as private. In Australia, the tort

of breach of confidence is more profound in protecting the invasion of privacy. in case of

Saltman Engineering v Campbell engineering56, the plaintiff complained a breach of confidence

by the defendant who went ahead to subsequently modify a design developed by the plaintiff and

sold it on its own account. Closer home in the United Kingdom, Coco v Clark57, Coco had

designed a motor-scooter engine and requested Clarke to license the design on their behalf. After

the negotiations failed, Clarke proceeded to manufacturing a scooter engine and Coco made

claims over breach of confidence.

53 A v. B plc [2003] Q.B. 19554 Lord Nicholls in Campbell v MGN Ltd [2004] A.C.457 at 464-5 summarised the law of confidence as “[the imposition] of a duty of confidence whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential55 Wainwright & Anor (Appellants –v- The Home Office (Respondents) : [2003] UKHL 5356 Saltman Engineering v Campbell Engineering (1948) 65 RPC 203; [1963] 3 All ER 41357 Coco –v- A N Clark (Engineers) Limited : 1969 [RPC 41,47]


3.2 Necessities of a breach of confidence

There are four main pillars that constitute a case on breach of confidence. The plaintiff

has to prove that the information had quality of confidence, secondly there should existence of

obligation to confidence, and the complainant must show the breach of the obligation58.

3.2.1 Quality of confidence

This implies that the information must be clearly defined before seeking protection for

the court to determine if it was confidential. The jury requires sufficient evidence that the actions

are not speculative and an abuse of the process as in the case of Suhner v Transradio. There are

various elements that substantiate the quality of confidence.

i) Relative secrecy

This element is built on the aspects of novelty and originality. It simply means that a

combination of information will count in providing evidence. Basically, information that has

been built in public domain may be difficult to remain secretive; however, if there is sufficient

employment of human brain in conferring to the confidential nature upon the information, then

the information may be considered private59. It requires combination of facts and occurrences to

avoid the information being vague. Relative secrecy argues that information that seems to be or

is considered to a certain level to be confidential will not be protected under this provision. In

case of De Maudsley v Palumbo, the complainant revealed an idea for a nightclub to the

defendant at a party. The defendant quickly approached the Ministry of Sound and registered a

58 . Wright, Tort Law and Human Rights (Oxford: 2001); W.V.H. Rogers, ‘Tort Law and Human Rights: A New Experience’, in H. Koziol and B.C. Steininger (eds.), European Tort Law 2002 (Vienna/New York: 2003), pp. 35–6459 A. Morgan, “Privacy, Confidence and Horizontal Effect: “Hello” Trouble” (2003) 62 (2) Cambridge Law Journal 444


nightclub with the same characteristics they had discussed with the plaintiff. The case was

rejected on the basis that it was vague and it did not have sufficient novelty to prove it was

confidential60. Another case of Fraser v Thames TV, the plaintiff had an idea of a TV show and

they shared it with a scriptwriter who later disclosed it to a producer who made it. The court

found it to be a breach of confidence as there was sufficient evidence showing that it was

original.

The concept of relative secrecy gives a room for disclosing information to a number of

people without it losing the aspect of confidentiality. Like in the case of Douglas v Hello, the

information was confidential even though some people had the knowledge and there was an

intention to publish it. The problem arises when another unathourised entity publishes the

information even if the information was under relative secrecy61. This means that the information

loses taste and it would be somehow meaningless to the authorized party. This means that partial

disclosure may make the information loose part of its confidentiality and this would harm the

patent.

ii) Springboard doctrine

This element stipulates that an individual can take advantage of public domain

information by obtaining it in confidence and springboard themselves against competitors. This

incidence is mostly common in business entities that are trying to a have a competitive advantage

over the others. Competitors are obligated to enhancing integrity and confidential relationship

and it applies to issues like customer lists where public information is treated in confidentiality.

60 . Wright, Tort Law and Human Rights (Oxford: 2001); W.V.H. Rogers, ‘Tort Law and Human Rights: A New Experience’, in H. Koziol and B.C. Steininger (eds.), European Tort Law 2002 (Vienna/New York: 2003), pp. 35–6461 Hazel Carty. ‘Advertising, Publicity Rights and English Law’ Intellectual Property Quarterly 2004


For instance, Terrapin made an agreement with Builders on supplying pre-fabs in case of

Terrapin v Builders Supply. Builders supply used similar supply methods after the completion of

the contract in competing with Terrapin. The court found the defendant guilty of using

confidential information, even though it was in public domain, for competitive purposes and the

plaintiff was given a limited injunctive relief62. This simply means that public information can be

relatively become secret and be protected under the breach of confidence.

iii) Private information

After the inclination of Human Rights Act 1998 in the UK justice system, the aspect of

private information was included in the breach of confidence clause63. This implies that in

instances where there is reasonable expectation of privacy then the information in question is

protected. It also indicates that information can be private despite the fact that it is widely

disclosed to an extent it is not considered as confidential such as Campbell v MGN. Similarly, the

element of private information protects public figure in public places. The element of private

information however relies on various factors such as nature and purpose of intrusion, if the

observer was aware of the lack of consent, and how the information was leaked before it is

treated as quality of confidence64.

3.2.2 Obligation of confidence

62 . Wright, Tort Law and Human Rights (Oxford: 2001); W.V.H. Rogers, ‘Tort Law and Human Rights: A New Experience’, in H. Koziol and B.C. Steininger (eds.), European Tort Law 2002 (Vienna/New York: 2003), pp. 35–6463 H Beverley-Smith et al, Privacy, Property and Personality, 200564 A. Morgan, “Privacy, Confidence and Horizontal Effect: “Hello” Trouble” (2003) 62 (2) Cambridge Law Journal 444


Obligation of confidence illustrates the agreement between the information holder and the

subject. It answers the question how was information confidentiality supposed to be handled in

the initial contract.

i) Direct obligations

This represents the relationship between the subject and the defendant such as contractual

terms. An express contract is the one an individual entered at the beginning of the transaction

such as an employment contract. An implied contract refers to the relationship is treated as of

“right type” such as professional adviser and client. Information leaked in such contractual terms

is claimed under the law of confidence as opposed to the law of contract65. The nature of the

relationship plays a significant role in determining if there was an obligation of confidence.

Personal relationship or even fiduciary relationship determines the confidentiality that the parties

share. It is also important to note that the manner of communication is quite important in making

the recipient understand that the information was actually given to them in confidence66.

ii) Third party recipients

If the contracting parties do not have a direct or intrinsic relationship and they were not in the

initial relationship of confidence then the recipient is a third party. In any instance that the

information is bound to reach a third-party, there should be a clear knowledge of confidential

65 Barnes, Robin. Outrageous Invasions: Celebrities’ Private Lives, Media, and the Law (Oxford University Press, 201066 JT McCarthy, The Rights of Publicity and Privacy, 2nd ed, 2000


status. This is because if a third-party maintains that he or she made the confidentiality status at a

later date, then they can argue that the disclosure of the information was unconscious67.

iii) Strangers

Parties in the contract may not have any relationship or agreement between the two. They are

basically strangers.

CHAPTER 4: PERSONALITY RIGHTS POSITIONS IN DIFFERENT JURISDICTIONS

4.0 Introduction

This chapter focuses on how personality rights are treated in other countries around the world

other than the United Kingdom. As mentioned in the introductory part, various countries have

67 A. Morgan, “Privacy, Confidence and Horizontal Effect: “Hello” Trouble” (2003) 62 (2) Cambridge Law Journal 444


realized and embraced the personality rights provisions to protect their public figures from

exploitation and unauthorized disclosure of their private information. Similarly, the study has

found out that the breach of confidence act is more profound in the United Kingdom as a

provision that protects most of the public figures against exploitation. Therefore, this chapter

wishes to highlight how these two provisions are treated in India and the USA as compared to

the UK.

4.1 Personality rights and breach of confidence position in India

The emergence of personality rights in the Indian law has abolished the dominance of

intellectual property rights in protection of patents, designs, trademarks, and copyright. Although

the intellectual property remains the most significant law in regulating intangible aspects of the

media, the current advent of public figures being used in media commercials brought another

line of thought in the jurisdiction. The Indian system understands the role played by the media in

influencing public opinion; hence, laws governing the media commercialization are enshrined in

the constitution68. Collectively, India refers to the provision protecting public figures as celebrity

rights. However, Nidhi Kumari believes that the Indian legal system is still milestone behind in

properly governing the celebrity rights even though they have been established into the system69.

The main challenge is experienced in handling the modern phenomena of celebrity’s integrity

rights. Nonetheless, the courts have in numerous instances upheld claims of personality rights70.

In light of this, the Indian Celebrity Rights are envisaged in three perspectives.

68 Garima Budhiraja, Publicity Rights of Celebrities: An Analysis Under the Intellectual Property Regime, 7 NALSAR STU L. RW 86 (2011)69 Nidhi Kumari, Moral Rights Of Author, Academike (Apr. 6, 2015), http://www.lawctopus.com/academike/moral-rights-author/ (70 Tabrez Ahmad & Satya Ranjan Swain, Celebrity Rights: Protection Under IP Laws, 16 J. OF INTELL. PROP. RTS. 7-16 (2011)


i) Moral/Personality rights

The Legal Service India describes the personality as the characteristics that position’s an

individual’s identity in the society. It is an outward representation that a person creates in the

eyes of the others in the way he is expected to behave in the society71. Based on a person’s

personality, they can utilize their talents in making contribution to the society. This clause clearly

indicates that an individual’s property is an extension of their personality.

ii) Privacy rights

Significantly, celebrities have a popular image in the society and the public tends to

personalize their characters; that is, they become fond of their every aspect and move they make

in life. It goes to an extent that their dress code, make-up, lifestyle, and even family is in the

public domain. This happens despite the fact that the celebrities have not disclosed that

information to the public; hence, there is a need for a regulation to control the exchange of

private information with the public. The right to privacy under the Article 21 of the Indian

constitution asserts that all the individuals are protected from invasion of private sphere even by

the government72. A person whose privacy has been violated is obligated to compensation

through a tort action under the India law73. Notably, the Indian Right to privacy applies to the

invasion of privacy and not the use of an individual’s likeness. This provision can be compared

with the UK’s set of rules that protects celebrities from false misrepresentation. The major

difference is that in UK privacy issues are not enshrined in a policy but depends on the judicial

71 Anurag K. Agarwal & S.S. Sagar Priyatham, Moral Rights in Copyright Law, (2003) 8 SCC (Jour) 372 Anurag K. Agarwal & S.S. Sagar Priyatham, Moral Rights in Copyright Law, (2003) 8 SCC (Jour) 373 Tabrez Ahmad & Satya Ranjan Swain, Celebrity Rights: Protection Under IP Laws, 16 J. OF INTELL. PROP. RTS. 7-16 (2011)


judgments based on the case. As observed here, the Indian law has a well-established provision

that protects individuals on privacy matters specifically.

In 2014, Shivaji Rao Gaikwad (aka Rajinikanth) v. Varsha Productions, the plaintiff filled a

suit against the defendant for an alleged violation of celebrity rights. In the case, the popular fim

actor Rajinikanth approached the Madras High Court to stop the release of a Bollywood movie

titled “Main Hoon Rajinikanth.’ To begin with, the actor argued that the producer of the film

infringed his personality rights by using his name as the title of the film. He goes on to argue that

his characteristics, nature and style of acting were all copied by the defendant; hence, there was

infringement of personality rights74. Secondly, the plaintiff sort compensation for the violation of

his rights to publicity as the defendant was purported to be gaining economically by gross

commercialization of his name and reputation. The third argument which touches the rights of

privacy was that the actor believed that the film contains scenes of immoral nature that were not

only defamatory but also breached his privacy issues. The court found the defendant guilty of

violating all the three accusations and damaging the reputation and goodwill of the plaintiff.

iii) Publicity/Merchandising rights

The right to publicity in India is described as violation of economic value associated with the

name and fame of a person. For this right to be acknowledged, the individual must prove that his

or her fame was in form of merchandise or in that it was intended to promote a product or an

activity75. In simpler terms, the defendant must have used the image or likeness of the plaintiff

74 Garima Budhiraja, Publicity Rights of Celebrities: An Analysis Under the Intellectual Property Regime, 7 NALSAR STU L. RW 86 (2011)75 Garima Budhiraja, Publicity Rights of Celebrities: An Analysis Under the Intellectual Property Regime, 7 NALSAR STU L. RW 86 (2011)


for economic gains. In the case of Zeta Zones v Hello Ltd, the presiding magistrate clarified that

the right to publicity is “an exclusive right of a celebrity to the profits to be made through the

exploitation of his fame and popularity for commercial purposes.”

Under Article 21 of the Indian Constitution, an individual can access the right to publicity by

merely registering to two laws. Firstly, an individual can acquire trademark rights where they

may apply for the protection of their name, likeness, nicknames, among other identification

unequivocal with the trademark registry in order to safeguard their misuse76. The defendant in the

case of DM Entertainemnt v Jhaveri was stopped from using the trademark “Daler Mahendi” by

the Delhi High Court meaning that the trademark law is applicable. Secondly, an individual may

apply for a copyright law to protect a specific image in the name of a photograph, painting, and

sculpture. However, the challenge arises where the celebrity has allowed his photograph to be

taken then finds out t being used later77. A similar case involving rights to publicity infringement

was witnessed in Titan Industries v M/S Ramkumar Jewelries78. Generally, the right to publicity

comprises of both laws in order to secure the celebrity from financial misappropriation.

In the case of ICC Development (International) Ltd v Arvee Enterprsies79, Delhi High Court

found out that publicity rights are the facet of privacy rights which are enshrined under Articles

19 and 21 of the Indian constitution. Drawing from the previous cases such as DM

Entertainment Pvt. Ltd. v. Infant Gift House and Ali v. Playgirl Inc.80, the court believed that

76 Paul M. Schwartz, Beyond Lessig's Code for Internet Privacy: Cyberspace Filters, Privacy-control and Fair Information Practices, [2000]WIS. L. REV. 743, 751.77 Tabrez Ahmad & Satya Ranjan Swain, Celebrity Rights: Protection Under IP Laws, 16 J. OF INTELL. PROP. RTS. 7-16 (2011)78 Titan Industries Ltd. vs M/S Ramkumar Jewellelrs on 26 April, 201279 ICC Development (International) Ltd. v. Arvee Enterprises and Anr., 2003 (26) PTC 245;80 447 F Supp 723


unauthorized appropriation of an individual’s persona which results to an unearned commercial

gain to another was against the constitution and is against the rights to publicity.

Basically, in India the situation regarding personality rights cannot be defined as adequate or

inadequate. The jurisdiction is observed as deficient in dealing with modern issues regarding

endorsements. However, what can be observed is that the personality rights, rights to privacy and

publicity are all referred to as celebrity rights. As defined in the case of ICC Development

(International) Ltd v Arvee Enterprsies81, the right of publicity has evolved from right of privacy

as the jurists tried to obtain a veil between privacy and exploitation based on economic matters.

In comparison to the UK law, the Indian system is quite advanced in acknowledging the

difference between privacy and commercial exploitation. The UK law also deals with private

matters under the breach of confidence provision which is not present in the Indian jurisdiction.

Conversely, the Indian law takes a double-standard approach by extending to say that no persona

can be monopolized. This argument contradicts with the provision that restricts the utilization of

an individual’s image or likeness stipulated in Article 19 and 21 of the constitution82. It can be

concluded that personality rights in India are subject to two major facets which are privacy and

publicity.

4.2 Personality Rights position in USA

The United States of America is consistently cited among the jurisdictions that have embraced

the personality rights effectively83. It is described as the use of someone else’s name, likeness, or

81 2003 (26) PTC 245 (Del)82 Shivaji Rao Gaikwad v. Varsha Productions, 2015 SCC OnLine Mad 158: (2015) 1 LW 701 : (2015) 2 CTC 113 (hereinafter Shivaji).83 Barnes, Robin. Outrageous Invasions: Celebrities’ Private Lives, Media, and the Law (Oxford University Press, 2010)


other attributes exploitative purposes. Personality rights in the United States are recognized in

two perspectives and they are realized in most of the states.

i) Privacy laws of the United States

This provision exclusively deals with the legal concepts surrounding the invasion of privacy. The

tort of common law is based on aggrieved individuals for the violation of their private spheres. It

is broadly defined as the “right to be let alone.” It incorporates a sundry of regulations such as

right to unwarranted search or seizure, right to free assembly, or right to family life84. Currently,

the law has evolved to accommodate public figures due to the disclosure of their private life

which at times is considered as too much. Most of the legal articles base this concept on Brandeis

and Warren article85 that stated that the media was overstepping its mandate by failing to observe

the limitations of propriety and decency86. In the modern tort law, the right to privacy is placed

into four major categories.

Intrusion of solitude and seclusion

This element protects individuals from intrusions upon their private space either physically,

electronically, or in any other means. This includes privately conducted investigations or

mounting electronic devices that will tap private information is considered an offence. These

restrictions are also subject to journalist and other media persons. In the case of Barber v Times

Inc.87, the defendant took pictures of celebrity Dorthy Barber giving a pregnancy delivery to a

baby boy. The plaintiff filled a suit for privacy invasion asserting that the photographer infringed

her right to privacy by unauthorized entry into the hospital and the defendant was found guilty.

84 Restatement 2d of Torts § 652E (1977) , The American Law Institute85 Warren and Brandeis, “The Right to Privacy” (1890) Harv.L.Rev. 19386 Mason, Alpheus Thomas (1946), Brandeis: A Free Man's Life, Viking Press, p. 70.87 Barber v. Time, Inc., 159 S.W.2d 291 (Mo. 1942). 7

http://www.worldcat.org/title/brandeis-a-free-mans-life/oclc/76869463

http://www.tomwbell.com/NetLaw/Ch05/R2ndTorts.html


The complainant was awarded damages amounting to 3000$ for publicizing confidential matters

even though the media published accurate truth, it was not authorized for the same88. In this

particular case, the journalist was guilty of unauthorized entry and forcefully photographing

which entirely violates the solitude and seclusion of a hospital environment.

Appropriation of name or likeness

Most of the American states have established statutes that prohibit the use of person’s images

and likeness without their consent as an invasion of privacy. It is important to note that this

action can be found in both the right of privacy and right to publicity. For instance, the case of

Cohen v Concepts Inc.89, the claimant’s image and her daughter were used on cosmetic products

packaging without their authorization. Even though the defendant argued that the images were

not identifiable, the court awarded the plaintiff damages due to disclosure of private family life

by the defendant. The right to privacy generally seeks to protect the subject in most cases

celebrities from disclosure of information that may put them in an embarrassing or humiliating

situation that may lead to the feeling of insecurity90.

False light

False light is a legal phrase in relation to privacy and it can be equated to defamation. It is

mostly concerned in protecting an individual from mental and emotional well-being when placed

in publicity. In most cases, this statute favors non-public figures who are subjected to false

publicity91. This applies when the presented information is incorrect or made with actual malice

88 William Prosser (1960), "Privacy", California Law Review (Vol 48, No. 3, pages 383-423)89 Cohen v Herbal Concepts Inc. (1984) 63 NY.2d 37990 Garima Budhiraja, Publicity Rights of Celebrities: An Analysis Under the Intellectual Property Regime, 7 NALSAR STU L. RW 86 (2011)91 oey Senat (2000), "4 Common Law Privacy Torts"

https://web.archive.org/web/20130424122836/http:/www.cas.okstate.edu/jb/faculty/senat/jb3163/privacytorts.html

http://www.californialawreview.org/assets/pdfs/misc/prosser_privacy.pdf


such as New York Times v. Sullivan. The information can also be embarrassing or highly

offensive and for these reasons damages may be recovered.

Public disclosure

This element protects individual from the event where information that is not of public

concern is revealed. In this concept, the fact that the reveled information was accurate does not

matter as long as the defendant disclosed confidential information to the public domain.

ii) US right of publicity law

The right of publicity in the U.S was first witnessed in Haelan Laboratories Inc. v Topps

Chewing Gum Inc92. Both the plaintiff and the defendant were chewing gum manufacturers

where Haelan had contacted a baseball athlete for an endorsement with the assurance that he

would not grant similar rights to another entity. Since the athlete had not given Haelen the rights

to sue on their behalf, it was quite difficult to employ the concept of right to privacy. Resultantly,

the court gave the plaintiff relief by coining the right to publicity since Haelen had exclusive

rights to publish the image of the athlete. The plaintiff is only required to prove that the image

used by the defendant resembles the one registered and it does not have to be formal or full name

even a nickname is well applicable93. For instance, in Faegre & Benson, LLP v Purdy94, the court

ruled out that the defendant had misappropriated the claimants name by the use of his

pseudonym in the domain of the website.

The American law interprets likeness as the visual image of an individual whether in a

photograph, drawing, caricature, or through any other representation. In the USA laws, the right 92 Haelan Laboratories v Topps chewing gum (1953) 202 F.2d.866(2d cir)93 Barnes, Robin. Outrageous Invasions: Celebrities’ Private Lives, Media, and the Law (Oxford University Press, 201094 Faegre & Benson, LLP v Purdy, 367 F. Supp. 2d 1238 (D. Minn, 2005)


of publicity is usually intertwined with the trademark issues95. For instance in the case of

McFarland v Miller96, the plaintiff was complaining over the use of the label SPANKY

MCFARLAND as a restaurant name by the defendant. The court followed the issues of right of

publicity and trademarks as stipulated section 43(a) of the constitution on the aspects of names or

other registered trademarks. The American federal law on publicity rights is disseminated into

various principles.

The principle of descendible, transferrable, and fixed term argues whether the right of

publicity survives after the death of the holder with states such as New York limiting it to

lifetime while others still feel that the rights extends even after a person’s death. The grandfather

clause also looks at trademark rights that were acquired a long time ago before enactment of a

similar use in current situation. A good example is the use of the word Winston Churchill.

Exemptions from liability are the clause that separates the violation of rights to publicity from

the freedom of speech granted by the constitution. The rights to publicity for instance would not

be awarded in news items, biography, history, fiction, commentary, and parody. To claim right to

publicity, it is paramount for the plaintiff to show that the defendant used an aspect of his

personality that is already protected by the law for an exploitative purpose and that there was no

prior consent or authorization given97. Consequently, the USA personalities rights are ailing from

disconnect among various states; hence, the stakeholders are working on harmonizing the law.

95 JOHN G. FLEMING, LAW OF TORTS 741 (9th ed. 1998); R. M. Williamson, Actio Personalis moritur cum Persona in the Law of Scotland, 10 L. Q.96 McFarland v. Miller, 14 F.3d 912 (3d Cir. 1994)97 Barnes, Robin. Outrageous Invasions: Celebrities’ Private Lives, Media, and the Law (Oxford University Press, 2010)

LLM Sample Dissertation

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