10th February 2015
Well fair enough, you may suppose – she still manages to ooze sex appeal across the decades, even she does so mainly in black and-white. But what's this: Max Factor are apparently paying Authentic Brands Group for the privilege of Ms Monroe’s endorsement? What on earth is going on?
It's all to do with “personality rights” or “image rights” - rights an individual may have in his or her image, likeness, personality, character, appearance etc. For the right kind of individual, these can be extremely valuable; for others, not so much. But they’re tricky things to handle, not least because there's almost no agreement on what they are, what they cover or whether they even exist.
Unsurprisingly, the natural habitat of this most star-struck of intellectual property rights is California, where an individual (usually a rich, famous individual) can claim an exclusive right to exploit their image during their lifetime and can pass this right to their estate after their death. But even in the US, it’s a state-by-state issue and New York, for instance, doesn’t protect celebrities once they’re deceased. So it can be extremely important to know where your celebs of choice live(d) - lengthy litigation in NYC and LA established that Marilyn Monroe died a resident of New York, meaning that her image rights expired with her and no one needed to pay anyone to use them.
That didn’t daunt ABG which simply lobbied California Governor Arnold Schwarzenegger to change the rules after the event - California's Celebrities Rights Act came into force after the Marilyn Monroe court case, but with retrospective effect. ABG can therefore continue to claim to own the “Marilyn Monroe brand” and to manage to make a tidy sum licensing it for use on consumer products. Sneaky. (But why would anyone outside California bother paying for such a questionable right? Well, in the USA you can very easily be sued in any state, making you effectively subject to that state’s law regardless of any local variations. Best to play safe, we suppose.)
Meanwhile, in the rest of the world, different laws apply. Most of the EU chooses to protect an individual’s right of privacy but not to go so far as to grant them a property right in their publicity. One exception is Italy – a court in Milan recently held that use of a model, costume and location designed to evoke Holly Golightly in Breakfast at Tiffany’s infringed the image rights of Audrey Hepburn (or, rather, her estate).
The UK (1) is famously resistant to the idea of “personality rights” and directly slapped them down during the court case between Michael Douglas & Catherine Zeta-Jones and Hello magazine. Celebrities with licence-worthy personalities have therefore resorted to a range of alternative options in an attempt to monopolise their merchandising potential.
Chief among these is “passing off”, a law that says you can't falsely claim or imply a commercial connection with another individual or business in trade. That works fairly well for anyone who has built up a commercial presence (as Rihanna recently found when she successfully sued Topshop over use of her image on a “boyfriend style tank” (2)), but is less useful if you can’t or won’t or haven’t touted yourself around (3). And these cases always turn on their own specific facts, so they're pretty flaky as precedents go - one judge in the Rihanna example thought that even her case was “close to borderline”.
In their search for more reliable protection, many stars have looked to registered trade marks, which don’t require any track record of commercial activity. Tom Jones has chosen to register this rather nice mugshot of himself, which his Mum would no doubt love but which doesn't really work from an IP point of view. The trouble is, this trade mark only really protects the photo in question and not the subject matter in general.
So rather than trying to bend the law to fit the IP, we're seeing a growing trend of shaping the IP to fit the law. Logos are eminently protectable in most jurisdictions of the world and seem to be the IP right of choice for today's discerning celebrity. Anyone who’s anyone these days has at least a monogram to their name - take a look at these beauties:
And you didn’t need us to tell you that this swoosh “immediately identifies the essence of Lewis Hamilton” and “embodies the sleek sophistication of the race way predator”. You knew that already, didn’t you?
Meanwhile the Beckhams, David and Victoria, emphasise their wedded bliss with this double-header. Awww.…
These logos have the benefit of being original and distinctive and that makes them very easy to enforce and defend. There’s always going to be a vast amount of money to be made by - and from - famous people, even/especially dead ones. And people with money always look to the law to help them keep it. BrandSoup is keen to see how this new trend for trade mark law will help celebrities stay celebrated.
1 - Not of course including Guernsey which recently legislated for image rights, but only within the Bailiwick itself.
2 - An oversized sleeveless t-shirt, rather than a piece of mobile artillery.
3 - So Princess Diana’s estate was unable to control her image in the years following her death because she had never commercially exploited herself during her lifetime (and, indeed, had never been in a position to do so).
4 - Unless of course he’s referring to the other most recent British Wimbledon victory - Virginia Wade in 1977?