Rihanna’s success last week in her claim against Topshop came as a surprise. Mr Justice Birss (as he now is) was at pains to point out that there is no such thing in England as a free standing general right to control the reproduction of one’s image. Selling a t-shirt bearing an image of a famous person is not, in itself, passing off. But Topshop’s sale of a Rihanna t-shirt was. What particular facts made this so?
- Rihanna is not just a pop star but also a style icon. Her views on fashion are influential, predominantly amongst females aged 13 to 30. Her endorsement in the world of high street fashion has a tangible value, as evidenced by an exclusive agreement with River Island to design clothing.
- Images recognisable as deriving from album covers are likely to be thought to be officially authorised. The image Topshop used on the t-shirt was taken during the video shoot for Rihanna’s single “We Found Love”. It looked like a publicity shot for what was at the time a recent musical release. It might have been thought by Rihanna’s fans to be part of the marketing campaign for the album, an item approved by Rihanna herself.
- Topshop has had major public links with celebrities in general and Rihanna in particular. Topshop had organised a competition in 2010 in which entrants were offered the chance to win a personal shopping appointment with Rihanna at the flagship Oxford Circus store. Topshop had tweeted its excitement in February 2012 when Rihanna dropped by to do some shopping.
Facts in Topshop’s favour
- There was no evidence of actual confusion amongst the public. No comments on the Topshop website indicated that anyone bought the t-shirt in the belief it was authorised by Rihanna.
- The swing tag and neck label on the t-shirt made no mention of Rihanna. Apart from a few days online, the word RIHANNA (a registered trade mark) wasn’t used. The judge described this as “a very important point in Topshop’s favour.”
- The t-shirt in question was a fashion garment rather than the more basic kind of t-shirt typical of artist authorised merchandise. However, the fact that a garment is a fashion garment is not of itself an indication which makes it unlikely to be authorised or endorsed by someone.
- Topshop sell many garments bearing images of celebrities. The public has no positive expectation that these garments sold by Topshop are authorised. They may or may not be as far as Topshop’s customers are concerned.
- The fact that Topshop is a high street retailer is neutral.
- The t-shirt was sold in Topshop stores throughout the UK and online. Nothing turned on the way the t-shirt was hung or sold in stores. The product was called RIHANNA TANK online, but only for a few days.
- The judge considered the image of Rihanna to be “not unflattering”. He didn’t think this was particularly relevant, although he thought that if anything the less flattering an image the less likely it is that it would be thought to be authorised.
The factors set out above may have some use as guidelines, but few hard and fast rules can be derived. False endorsement cases are highly fact specific. What remains clear is that the English court has not moved towards recognising any kind of generalised image right along the lines of the US right of publicity. Claims based on passing off must always involve not only the unauthorised use of a celebrity’s image, but a likelihood that members of the public will be deceived into buying a product because they think it is authorised. Deception is the essential element of passing off and the Rihanna decision does nothing to alter this.