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As Topshop fails to overturn Rihanna passing off ruling, does it set a precedent?
By Chris Cooke | Published on Friday 23 January 2015
Topshop has failed to overturn a court ruling that said its sale of a t-shirt featuring a photo of Rihanna amounted to ‘passing off’. The court decision in August 2013 led to an injunction banning the retailer from selling the shirt, with damages still to be decided now that the retailer’s appeal has failed.
As previously reported, the retail firm had properly licensed the photo from its copyright owner – which wasn’t Rihanna or her business partners – so there wasn’t a case for copyright infringement. Meanwhile in the UK, unlike the US, there is not a separate ‘image right’ that celebrities can rely on to stop their identity being used in this way.
However, there is the so called tort of passing off. This is basically where one individual or company implies a formal association with another individual or company so that consumers believe they are buying a product or service that is endorsed by the latter when they are, in fact, not.
Rihanna’s lawyers argued that the photo on the Topshop t-shirt was so similar to official photos used to promote her ‘Talk That Talk’ album (it was taken during a video shoot for said record) that it implied official endorsement. Which constitutes passing off. And the High Court agreed with that argument in 2013, as did three appeal judges this week.
At both first instance and on appeal the judges hearing the case were keen to stress that these judgements do not introduce a more general image right into English law, and the ruling centres on the facts of the case, which comply with the principle of passing off.
Though some legal experts reckon that said principle, traditionally interpreted in a very narrow way by the English courts, is slowly being widened in remit as the courts increasingly recognise the now established business of celebrity endorsement.
Which possibly gives more power to celebrities wishing to control the use of their image by commercial entities, and should therefore concern businesses that use celebrity images without official endorsement, even when they have properly licensed all the intellectual property in the images they use.
Meanwhile, we wait to see what damages Rihanna’s team propose Topshop should pay, given her lawyers had previously asked that the retailer cover legal fees that topped £900,000, a figure the judge in the original case called “startling”.
