www.collascrill.com | Guide

BVI | Cayman | Guernsey | Jersey | London

This note is a summary of the subject and is provided for information only. It does not purport to give specific legal advice, and before acting, further advice should alwaysbe sought. Whilst every care has been taken in producing this note neither the author nor Collas Crill shall be liable for any errors, misprint or misinterpretation of any of thematters set out in it. All copyright in this material belongs to Collas Crill.

What are Guernsey image rights?Guernsey image rights are property rights acquired by the registration of a "personality" in Guernsey's Register of Personalities andImages, which gives the proprietor of the registered personality exclusive rights in the images associated with or registered againstthat registered personality.

What is a "personality" for the purposes of the IR Ordinance?

Guernsey image rights, like any other form of registered intellectual property in anyjurisdiction, are territorial rights restricted to the territory in which they are registered, sowill only be infringed by unauthorised use in the Bailiwick of Guernsey. However, Guernseyimage rights have been designed to be fully compatible and integrated with modernmedia, including broadcasting, satellite transmission, the Internet and other electroniccommunications, to provide protection in the global mass media market. The GuernseyCourt may analogise with UK and European intellectual property case law as to what mayconstitute infringing use in a cross-border context.

In any event, there are benefits to registering image rights in Guernsey, which are notdependent on enforcement of those rights in an infringement situation, such as clear andpublic definition of what are considered to be a personality's protectable rights.

How do I enforce my image rights?Image rights will generally be enforced through an infringement action in the Royal Court of Guernsey.

Are there any defences or exceptions to infringement?

There are a number of public interest defences or exceptions to infringement, including:

Comparative advertising, provided the use is in accordance with honest practices in trade, industrial, commercial or not for profitmatters; Incidental use;

www.collascrill.com | Guide

BVI | Cayman | Guernsey | Jersey | London

This note is a summary of the subject and is provided for information only. It does not purport to give specific legal advice, and before acting, further advice should alwaysbe sought. Whilst every care has been taken in producing this note neither the author nor Collas Crill shall be liable for any errors, misprint or misinterpretation of any of thematters set out in it. All copyright in this material belongs to Collas Crill.

What are Guernsey image rights?Guernsey image rights are property rights acquired by the registration of a "personality" in Guernsey's Register of Personalities andImages, which gives the proprietor of the registered personality exclusive rights in the images associated with or registered againstthat registered personality.

What is a "personality" for the purposes of the IR Ordinance?

Guernsey image rights, like any other form of registered intellectual property in anyjurisdiction, are territorial rights restricted to the territory in which they are registered, sowill only be infringed by unauthorised use in the Bailiwick of Guernsey. However, Guernseyimage rights have been designed to be fully compatible and integrated with modernmedia, including broadcasting, satellite transmission, the Internet and other electroniccommunications, to provide protection in the global mass media market. The GuernseyCourt may analogise with UK and European intellectual property case law as to what mayconstitute infringing use in a cross-border context.

In any event, there are benefits to registering image rights in Guernsey, which are notdependent on enforcement of those rights in an infringement situation, such as clear andpublic definition of what are considered to be a personality's protectable rights.

How do I enforce my image rights?Image rights will generally be enforced through an infringement action in the Royal Court of Guernsey.

Are there any defences or exceptions to infringement?

There are a number of public interest defences or exceptions to infringement, including:

Comparative advertising, provided the use is in accordance with honest practices in trade, industrial, commercial or not for profitmatters; Incidental use;

Further, there are provisions in the IR Ordinance dealing with invalidity and revocation of registrations.

There is also a right to continue use begun before registration, whereby a person who lawfully, before registration of a personality (i)does in good faith an act which would constitute infringement of the registered personality's image rights, or (ii) makes in good faitheffective and serious preparations to do such an act, has the right, notwithstanding registration, to do the act for a period of 12 monthsfrom registration of the personality.

What remedies are there for infringement?

All remedies as are available in respect of the infringement of any other intellectual property right, such as damages, injunctions,accounts of profits. In addition, the following specific remedies are provided for an order:

It should be noted however that damages or an account of profits will not be awarded where the defendant proves that at the date ofinfringement he did not know and had no reasonable grounds for knowing that the image in question was a registered personality'simage - however, this does not apply where the image infringed is registered.

How are damages assessed?

The IR Ordinance provides that, save where punitive damages are appropriate (see below), and where a defendant knew, or hadreasonable grounds to know that at the date of the infringement the image was a registered personality's image, any damagesawarded to the plaintiff shall be appropriate to the actual prejudice the plaintiff suffered as a result of the infringement. When awardingsuch damages all relevant factors are to be taken into account, including in particular:

www.collascrill.com | Guide

BVI | Cayman | Guernsey | Jersey | London

This note is a summary of the subject and is provided for information only. It does not purport to give specific legal advice, and before acting, further advice should alwaysbe sought. Whilst every care has been taken in producing this note neither the author nor Collas Crill shall be liable for any errors, misprint or misinterpretation of any of thematters set out in it. All copyright in this material belongs to Collas Crill.

Further, there are provisions in the IR Ordinance dealing with invalidity and revocation of registrations.

There is also a right to continue use begun before registration, whereby a person who lawfully, before registration of a personality (i)does in good faith an act which would constitute infringement of the registered personality's image rights, or (ii) makes in good faitheffective and serious preparations to do such an act, has the right, notwithstanding registration, to do the act for a period of 12 monthsfrom registration of the personality.

What remedies are there for infringement?

All remedies as are available in respect of the infringement of any other intellectual property right, such as damages, injunctions,accounts of profits. In addition, the following specific remedies are provided for an order:

It should be noted however that damages or an account of profits will not be awarded where the defendant proves that at the date ofinfringement he did not know and had no reasonable grounds for knowing that the image in question was a registered personality'simage - however, this does not apply where the image infringed is registered.

How are damages assessed?

The IR Ordinance provides that, save where punitive damages are appropriate (see below), and where a defendant knew, or hadreasonable grounds to know that at the date of the infringement the image was a registered personality's image, any damagesawarded to the plaintiff shall be appropriate to the actual prejudice the plaintiff suffered as a result of the infringement. When awardingsuch damages all relevant factors are to be taken into account, including in particular:

Where appropriate damages may be awarded on the basis of royalties or fees which would have been due had the defendantobtained a licence.

There is also provision for additional punitive damages, which the court may award as the justice of the case may require, havingregard to all circumstances and in particular to:

I would like to make an application - what do I do now?

Please contact us by email enquiriesgicollascrillip.com.

A registered personality is, and a registered personality's image rights are, transmissibleby assignment, testamentary disposition or operation of law, and may be licensed, in thesame way as other personal or movable property. To be effective, an assignment, assentor licence must be in writing signed by or on behalf of the proprietor.

In addition, until an application has been made for registration of such transactions, thetransaction is ineffective as against a person acquiring a conflicting interest (provided noreasonable grounds of knowledge) and the 'licensee' under the transaction has no rightsor remedies in relation to infringement. Upon application for registration, the licenseeacquires certain rights to call on the proprietor to bring infringement proceedings and/orbring infringement proceedings itself.

What constitutes infringement?A registered personality's image rights are infringed by the use for a commercial purpose or a financial or economic benefit, without theconsent of the proprietor of the image rights, of an image:

Only a "protected image" can be infringed. To be a protected image, at the time of the alleged infringement the image has to be"distinctive", have "actual or potential value" and satisfy the registrability requirements of an image (whether or not it is in factregistered).

An image is "distinctive" if it is recognised as being associated with the registered personality by a wide or relevant sector of the public

www.collascrill.com | Guide

BVI | Cayman | Guernsey | Jersey | London

This note is a summary of the subject and is provided for information only. It does not purport to give specific legal advice, and before acting, further advice should alwaysbe sought. Whilst every care has been taken in producing this note neither the author nor Collas Crill shall be liable for any errors, misprint or misinterpretation of any of thematters set out in it. All copyright in this material belongs to Collas Crill.

Where appropriate damages may be awarded on the basis of royalties or fees which would have been due had the defendantobtained a licence.

There is also provision for additional punitive damages, which the court may award as the justice of the case may require, havingregard to all circumstances and in particular to:

I would like to make an application - what do I do now?

Please contact us by email enquiriesgicollascrillip.com.

A registered personality is, and a registered personality's image rights are, transmissibleby assignment, testamentary disposition or operation of law, and may be licensed, in thesame way as other personal or movable property. To be effective, an assignment, assentor licence must be in writing signed by or on behalf of the proprietor.

In addition, until an application has been made for registration of such transactions, thetransaction is ineffective as against a person acquiring a conflicting interest (provided noreasonable grounds of knowledge) and the 'licensee' under the transaction has no rightsor remedies in relation to infringement. Upon application for registration, the licenseeacquires certain rights to call on the proprietor to bring infringement proceedings and/orbring infringement proceedings itself.

What constitutes infringement?A registered personality's image rights are infringed by the use for a commercial purpose or a financial or economic benefit, without theconsent of the proprietor of the image rights, of an image:

Only a "protected image" can be infringed. To be a protected image, at the time of the alleged infringement the image has to be"distinctive", have "actual or potential value" and satisfy the registrability requirements of an image (whether or not it is in factregistered).

An image is "distinctive" if it is recognised as being associated with the registered personality by a wide or relevant sector of the publicin any part of the world, and various factors are listed in the IR Ordinance for determining whether an image is distinctive. Notably, aregistered image is presumed to be distinctive (although the presumption can be rebutted).

An image has "actual or potential value" if it can or has the potential to be exploited for valuable consideration. Again, a registeredimage is presumed to have actual or potential value, although this can be rebutted.

The IR Ordinance provides a wide and non- exhaustive definition of what constitutes unauthorised use of an image, including use of theimage:

These are wide ranging definitions for infringement and they do not require the use to be in relation to particular goods or services, aswith a trade mark.

Can image rights be infringed outside Guernsey?

There is no requirement that an applicant/ proprietor be resident or established inGuernsey; anyone anywhere in the world can register a personality provided the applicantis legally entitled to exploit rights in the personality by virtue of being the actualpersonnage or a person in whom the personnage's rights have been vested (andprovided the personality meets the requirements for registration). In the case of a fictionalcharacter, in the first instance (and subject to any agreement to the contrary) its creator isthe person entitled to be registered as proprietor unless it was created pursuant to a commission or in the course of employment.

Can I register in the name of a company?Yes, if the legal entitlement to exploit rights in the personality is vested in that company, either by transfer of these rights to the companyor by virtue of the company being the personnage itself.

I represent the estate of a deceased person - can I register?Yes, provided the legal entitlement to exploit rights in the personality is comprised in the estate and has not been transferred to a thirdparty.

Who can register specific images associated with a personality?The person legally entitled to exploit the specific image, which, where the personality is registered, may be the proprietor of theregistered personality, or a third party to whom rights in respect of that image have been transmitted.

www.collascrill.com | Guide

BVI | Cayman | Guernsey | Jersey | London

This note is a summary of the subject and is provided for information only. It does not purport to give specific legal advice, and before acting, further advice should alwaysbe sought. Whilst every care has been taken in producing this note neither the author nor Collas Crill shall be liable for any errors, misprint or misinterpretation of any of thematters set out in it. All copyright in this material belongs to Collas Crill.

in any part of the world, and various factors are listed in the IR Ordinance for determining whether an image is distinctive. Notably, aregistered image is presumed to be distinctive (although the presumption can be rebutted).

An image has "actual or potential value" if it can or has the potential to be exploited for valuable consideration. Again, a registeredimage is presumed to have actual or potential value, although this can be rebutted.

The IR Ordinance provides a wide and non- exhaustive definition of what constitutes unauthorised use of an image, including use of theimage:

These are wide ranging definitions for infringement and they do not require the use to be in relation to particular goods or services, aswith a trade mark.

Can image rights be infringed outside Guernsey?

There is no requirement that an applicant/ proprietor be resident or established inGuernsey; anyone anywhere in the world can register a personality provided the applicantis legally entitled to exploit rights in the personality by virtue of being the actualpersonnage or a person in whom the personnage's rights have been vested (andprovided the personality meets the requirements for registration). In the case of a fictionalcharacter, in the first instance (and subject to any agreement to the contrary) its creator isthe person entitled to be registered as proprietor unless it was created pursuant to a commission or in the course of employment.

Can I register in the name of a company?Yes, if the legal entitlement to exploit rights in the personality is vested in that company, either by transfer of these rights to the companyor by virtue of the company being the personnage itself.

I represent the estate of a deceased person - can I register?Yes, provided the legal entitlement to exploit rights in the personality is comprised in the estate and has not been transferred to a thirdparty.

Who can register specific images associated with a personality?The person legally entitled to exploit the specific image, which, where the personality is registered, may be the proprietor of theregistered personality, or a third party to whom rights in respect of that image have been transmitted.

Do I need a registered personality before I can register an image?An application for registration of an image may be made at the same time as, or at any time after, an application for registration of thepersonality in respect of which that image is to be registered.

Are there any grounds for refusal of registration of a personality/image?The IR Ordinance provides for various grounds for refusal of registration of a personality or an image, including grounds which may bedetermined by the Registrar.

Prescribed grounds for refusal include:-

The above are so called absolute grounds.

There are also so called relative grounds for refusal, i.e.:

If an application for registration of a personality or image has not been refused by the Registrar on any of the above grounds, theRegistrar will publish the application and it will then be open for an "interested party" to object to the application on any of the abovegrounds if they see fit. An "interested party" includes (i) the personnage who is the subject of the application or whose personality is thesubject of an existing personality; (ii) the registered proprietor of an existing personality or image rights attributable to an existingpersonality or someone who has an earlier right in the personality or image applied for; or (iii) the person entitled to be registered asthe proprietor of the personality/image applied for.

What are the costs of registration?These will be set by the Registry nearer the time of roll out of the Image Rights register from 3 December 2012. Please see the CollasCrill IP website for an indication of our fees.

How long does a registration last? Can the registration be renewed?

www.collascrill.com | Guide

BVI | Cayman | Guernsey | Jersey | London

This note is a summary of the subject and is provided for information only. It does not purport to give specific legal advice, and before acting, further advice should alwaysbe sought. Whilst every care has been taken in producing this note neither the author nor Collas Crill shall be liable for any errors, misprint or misinterpretation of any of thematters set out in it. All copyright in this material belongs to Collas Crill.

Do I need a registered personality before I can register an image?An application for registration of an image may be made at the same time as, or at any time after, an application for registration of thepersonality in respect of which that image is to be registered.

Are there any grounds for refusal of registration of a personality/image?The IR Ordinance provides for various grounds for refusal of registration of a personality or an image, including grounds which may bedetermined by the Registrar.

Prescribed grounds for refusal include:-

The above are so called absolute grounds.

There are also so called relative grounds for refusal, i.e.:

If an application for registration of a personality or image has not been refused by the Registrar on any of the above grounds, theRegistrar will publish the application and it will then be open for an "interested party" to object to the application on any of the abovegrounds if they see fit. An "interested party" includes (i) the personnage who is the subject of the application or whose personality is thesubject of an existing personality; (ii) the registered proprietor of an existing personality or image rights attributable to an existingpersonality or someone who has an earlier right in the personality or image applied for; or (iii) the person entitled to be registered asthe proprietor of the personality/image applied for.

What are the costs of registration?These will be set by the Registry nearer the time of roll out of the Image Rights register from 3 December 2012. Please see the CollasCrill IP website for an indication of our fees.

How long does a registration last? Can the registration be renewed?The registration of a personality lasts for a period of ten years from the date of registration and may be renewed for further periods often years. Where a specific image has been registered against the registered personality, the registration of that image lasts for threeyears and may be renewed for further periods of three years.

Do I have to use the registered personality/ registered images to keep them?There are no use requirements as such (such as apply to registered trade marks), however, an image will not be protected under the IROrdinance if the use made of it, or its lack of use, results in the image not being distinctive of the registered personality, or having novalue. The image not being distinctive (because it has become customary or generic, or misleading) would also be a ground forrevocation of its registration.

Can Guernsey image rights be assigned or licensed or otherwise transferred?

No, not at the point of registration, but in view of the requirements for infringementdiscussed below, the personnage's personality will have to be recognised by a wide orrelevant sector of the public (in any part of the world), at the time of alleged infringement.In this way it is easier to register a personality than a trade mark, since a trade mark mustbe inherently distinctive or have acquired distinctiveness through use at the point ofregistration. This is attractive to those at the beginning of their careers who are relatively unknown, who will be able to see the value oftheir registered image rights grow with time.

One of the requirements for infringement of image rights is that the particular image which it is alleged has been infringed be"distinctive" at the time of infringement. Distinctiveness is presumed in the case of a registered image - a real advantage of registeringspecific images (although this presumption can be rebutted). An image is distinctive if it is recognised as being associated with theregistered personality by a wide or relevant sector of the public in any part of the world. The IR Ordinance provides a non-exhaustive listof factors for assessing whether an image is distinctive.

These infringement requirements do not imply that the personnage has to be a global superstar, or be in the media & entertainment orsports industries; anyone in the public eye in any part of the world can use the legislation, whether an individual, corporate or fictionalcharacter, or collections of individuals or corporates, but to enforce their rights their image will have to meet the recognitionrequirements discussed above by the time of the alleged infringing use.

What is protected?The proprietor of a registered personality has exclusive rights in the images associated with or registered against that registeredpersonality.

An "image" is a representation of the personality and is widely defined as including (a) a personnage's name or any other name bywhich they are known, (b) the voice, signature, likeness, appearance, silhouette, feature, face, expressions (verbal or facial), gestures,mannerisms and any other distinctive characteristic or personal attribute of a personnage, or (c) any photograph, illustration, image,

www.collascrill.com | Guide

BVI | Cayman | Guernsey | Jersey | London

This note is a summary of the subject and is provided for information only. It does not purport to give specific legal advice, and before acting, further advice should alwaysbe sought. Whilst every care has been taken in producing this note neither the author nor Collas Crill shall be liable for any errors, misprint or misinterpretation of any of thematters set out in it. All copyright in this material belongs to Collas Crill.

The registration of a personality lasts for a period of ten years from the date of registration and may be renewed for further periods often years. Where a specific image has been registered against the registered personality, the registration of that image lasts for threeyears and may be renewed for further periods of three years.

Do I have to use the registered personality/ registered images to keep them?There are no use requirements as such (such as apply to registered trade marks), however, an image will not be protected under the IROrdinance if the use made of it, or its lack of use, results in the image not being distinctive of the registered personality, or having novalue. The image not being distinctive (because it has become customary or generic, or misleading) would also be a ground forrevocation of its registration.

Can Guernsey image rights be assigned or licensed or otherwise transferred?

No, not at the point of registration, but in view of the requirements for infringementdiscussed below, the personnage's personality will have to be recognised by a wide orrelevant sector of the public (in any part of the world), at the time of alleged infringement.In this way it is easier to register a personality than a trade mark, since a trade mark mustbe inherently distinctive or have acquired distinctiveness through use at the point ofregistration. This is attractive to those at the beginning of their careers who are relatively unknown, who will be able to see the value oftheir registered image rights grow with time.

One of the requirements for infringement of image rights is that the particular image which it is alleged has been infringed be"distinctive" at the time of infringement. Distinctiveness is presumed in the case of a registered image - a real advantage of registeringspecific images (although this presumption can be rebutted). An image is distinctive if it is recognised as being associated with theregistered personality by a wide or relevant sector of the public in any part of the world. The IR Ordinance provides a non-exhaustive listof factors for assessing whether an image is distinctive.

These infringement requirements do not imply that the personnage has to be a global superstar, or be in the media & entertainment orsports industries; anyone in the public eye in any part of the world can use the legislation, whether an individual, corporate or fictionalcharacter, or collections of individuals or corporates, but to enforce their rights their image will have to meet the recognitionrequirements discussed above by the time of the alleged infringing use.

What is protected?The proprietor of a registered personality has exclusive rights in the images associated with or registered against that registeredpersonality.

An "image" is a representation of the personality and is widely defined as including (a) a personnage's name or any other name bywhich they are known, (b) the voice, signature, likeness, appearance, silhouette, feature, face, expressions (verbal or facial), gestures,mannerisms and any other distinctive characteristic or personal attribute of a personnage, or (c) any photograph, illustration, image,

picture, moving image or electronic or other representation ("picture") of a personnage and of no other person, except to the extent thatthe other person is not identified or singled out in connection with the use of the picture.

There is no requirement to register specific images associated with the registered personality (beyond the personality's name itself),however there is benefit in registering images in terms of easier enforcement and availability of damages.

A registered personality's images are only protected if they fulfil the distinctive, value and registrability requirements (discussed belowunder "What constitutes infringement") at the time of alleged infringement (although an image does not have to have been registered tobe protected).

Who can register a personality?

A "personality" is a person's essential brand, i.e. the name by which the person is known.To be registrable under the IR Ordinance, it must be the personality of one of five types ofperson or subject, referred to as the "personnage".

What is a personnage?Under the IR Ordinance the person or subject whose personality is registered is known asthe "personnage". A personality can only be registered if it is the personality of one of thefollowing five types of personnage:

Why are there different categories of personnage?The IR Ordinance treats joint personalities and group personalities differently in that the persons forming a joint personality may notchange from time to time, whereas for a group they can. This is to accommodate changes in the persons making up a group such as afootball team or pop band from time to time - the personality of a group goes on despite changes in the underlying persons, whereas ajoint personality would not exist without the specific persons who formed it.

www.collascrill.com | Guide

BVI | Cayman | Guernsey | Jersey | London

This note is a summary of the subject and is provided for information only. It does not purport to give specific legal advice, and before acting, further advice should alwaysbe sought. Whilst every care has been taken in producing this note neither the author nor Collas Crill shall be liable for any errors, misprint or misinterpretation of any of thematters set out in it. All copyright in this material belongs to Collas Crill.

picture, moving image or electronic or other representation ("picture") of a personnage and of no other person, except to the extent thatthe other person is not identified or singled out in connection with the use of the picture.

There is no requirement to register specific images associated with the registered personality (beyond the personality's name itself),however there is benefit in registering images in terms of easier enforcement and availability of damages.

A registered personality's images are only protected if they fulfil the distinctive, value and registrability requirements (discussed belowunder "What constitutes infringement") at the time of alleged infringement (although an image does not have to have been registered tobe protected).

Who can register a personality?

A "personality" is a person's essential brand, i.e. the name by which the person is known.To be registrable under the IR Ordinance, it must be the personality of one of five types ofperson or subject, referred to as the "personnage".

What is a personnage?Under the IR Ordinance the person or subject whose personality is registered is known asthe "personnage". A personality can only be registered if it is the personality of one of thefollowing five types of personnage:

Why are there different categories of personnage?The IR Ordinance treats joint personalities and group personalities differently in that the persons forming a joint personality may notchange from time to time, whereas for a group they can. This is to accommodate changes in the persons making up a group such as afootball team or pop band from time to time - the personality of a group goes on despite changes in the underlying persons, whereas ajoint personality would not exist without the specific persons who formed it.

The IR Ordinance also provides for moral rights of personnages who are natural persons, but not for other types of personnage. Thesemoral rights are the right to be identified and the right not to be subjected to derogatory treatment and are quite separate from imagerights.

Do I have to be famous to register?

www.collascrill.com | Guide

BVI | Cayman | Guernsey | Jersey | London

This note is a summary of the subject and is provided for information only. It does not purport to give specific legal advice, and before acting, further advice should alwaysbe sought. Whilst every care has been taken in producing this note neither the author nor Collas Crill shall be liable for any errors, misprint or misinterpretation of any of thematters set out in it. All copyright in this material belongs to Collas Crill.

The IR Ordinance also provides for moral rights of personnages who are natural persons, but not for other types of personnage. Thesemoral rights are the right to be identified and the right not to be subjected to derogatory treatment and are quite separate from imagerights.

Do I have to be famous to register?

//t: // e:

//t: // e: