Fenty & Ors v Arcadia Group Brands Ltd (t/a Topshop) & Anor  EWHC 2310 (Ch)
International pop star Robyn Rihanna Fenty, aka Rihanna, has taken her image rights to a next level and has recently won the battle against fashion giant Topshop in the Chancery Division of the High Court.
I’m sure that both fans and fashionista’s all know the ins and outs of the case, but if you missed it here’s the lowdown; Whilst in sunny Scotland shooting her ‘We found Love’ video the photographer took a still picture of Rihanna sporting a curly hair up-do and some denim dungarees. Topshop obtained a license from the photographer, but not from Rihanna, and then printed RiRi’s face on a casual vest T, known as the ‘RIHANNA TANK’ and retailed it at £22.00 selling a total of 12,000 units between 6th March 2012 and August 2012. Unfortunately, for Topshop, RiRi did not consent to her image being used.
However, the UK, unlike certain American jurisdictions who’s state based law bubble wraps celeb’s as if they are a delicate piece of china wear under the Right of Publicity legislation, does not harbour the same sugar coating ‘Image Rights’ to celebrities and personalities. Mr Justice Birss sitting at the High Court stated “in England there is no such thing as a free standing general right by a famous person (or anyone else) to control the reproduction of their image” making it clear that America’s protection played no place in the UK. However, it is questionable how long this statement will stand substance, taking into account the outcome of the present case and the fact that British Island Guernsey has recently enacted image protecting legislation under the Image Rights (Bailiwick of Guernsey) Ordinance, 2012. Conversely, it appears that the local Del Boy selling the RIHANNA TANK down Petty Coat Lane wouldn’t have committed an offence. As Mr Justice Birss emphasised, stating that “The mere sale by a trader of a t-shirt bearing an image of a famous person is not, without more, an act of passing off”. However, retailers shouldn’t get too comfortable as the common law tort of ‘Passing Off’ became the Talk That Talk star’s umbrella of relief.
Lord Oliver in Reckitt & Colman Products Ltd v Borden Inc  1 All ER established three elements needed to establish the tort of Passing Off. These are firstly; goodwill owned by a trader, secondly; misrepresentation and finally; damage to goodwill. These elements distinguish the US offence, since under UK law deceit must be present to have found Topshop guilty for Passing off merchandise without Rihanna’s consent. Mr Justice Birss was the voice behind RiRi’s misled fans as he held that “They will recognise or think they recognise the particular image of Rihanna … as a particular picture of her associated with a particular context, the recent Talk That Talk album. For those persons the idea that it is authorised will be part of what motivates them to buy the product… Many will buy a product because they think she has approved of it. Others will wish to buy it because of the value of the perceived authorisation itself. In both cases they will have been deceived.” Social networking site ‘Twitter’ made an appearance in the judgment. Topshop’s tweet “Ridiculously excited! @Rihanna is in our Oxford Circus store as we tweet. Ah, wonder what she’ll buy…” was described as having taken place “because Topshop thinks it would sell more products.” Mr Justice Birrs concluded that the fact that a number of purchasers were deceived into buying the vest T, thinking that the garment had been authorised by Rihanna herself, meant that this was “damaging to the claimant (Rihanna’s) goodwill, sales lost to Rihanna’s own merchandising business and a loss of control over her reputation in the fashion sphere”.
After a yearlong battle, having declined Topshop tycoon Sir Philip Green’s compensation offer of £3,500 and having spent £660,000 on litigation fees (as reported by fashion.telegraph.co.uk), RiRi raked in a reported £3.5 million in damages. You’d think that the River Island designer mustn’t have liked the image, yet although RiRi’s witnesses claimed the image was ‘unflattering’ Mr Justice Birss commented “It is not an unflattering image, albeit no doubt if Rihanna had authorised it, the image might have been touched up before it was released.” Maybe RiRi realised that she wasn’t the Only Girl In The World as Made in Chelsea star, conveniently also Topshop heiress Chloe Green, has a close friendship with ex Chris Brown.
Image obtained from: http://www.avenue7.com
Esra Buyukdeniz – URBAN LAWYERS – August 2013