The case of Rihanna v Topshop is the first of its kind in the UK. Robyn Rihanna Fenty and others v Arcadia Group Brands and others  concerned the IP protection of photographs used on material items.
Pop Sensation Rihanna made a claim against the high-street giant Topshop after the fashion retailer used a photograph of her taken during the filming of the hit “We Found Love” in 2011 on its clothing.
Image Rights, Personality Rights and Passing Off
Rihanna sued Arcadia, Topshop's parent company, for around £3.3 million. Rihanna’s lawyers argued that the t-shirts may have duped fans into thinking she endorsed the product and thus damaged her reputation. They also claimed that the picture on the t-shirts bore a similar resemblance to images used on CD sleeves for one of Rihanna's albums.
The UK, unlike the US, has no separate claim for image rights or personality rights. US laws allow celebrities strong rights in relation to their persona and image, which do not exist in the UK. Consequently there is little legal authority for celebrities to protect their image in the UK on a standalone basis.
Rihanna needed to show that the activities of Topshop infringed a pre-existing right. Accordingly, she brought an action for passing off which required that three elements were met:
- Goodwill - she had goodwill and reputation among relevant members of the public.
- Misrepresentation - members of the public were likely to be deceived into buying the product in the false belief that she had endorsed the product.
- Damage - that misrepresentation caused damage to her goodwill.
Use of Celebrity Images and Passing Off
Counsel for Topshop argued that the singer was making an unjustifiable bid to establish a “free standing image right.” Mr Justice Birss confirmed in the judgement that no such right existed under English Law. He reasoned that the mere sale of a t-shirt by a retailer bearing an image of a celebrity is not an act of passing off but, taking into account the circumstances, he found in favour of Rihanna.
Mr Justice Birss ruled that a “substantial number” of buyers were likely to have been deceived into purchasing the t-shirt upon the basis that it had been approved and endorsed by Rihanna. In reaching that conclusion he took into account Topshop’s marketing strategy of associating fashion with celebrities, and held that this was a decisive factor. He commented that there would have been less confusion if the t-shirt had been sold in a different retail store.
Mr Justice Birss held that the image used by Topshop amounted to sales lost to the singer’s merchandising business, as well as a loss of control over her reputation in the fashion sphere. The judgement in this case recognises the power of attraction of a celebrity and the impact on their earning capabilities. The case confirms that misrepresentation of celebrity endorsement or approval will not be welcomed under English Law.
This is the first time that a celebrity has successfully challenged the use of their image on an item of clothing in this way. The outcome is likely to mean retailers and companies who use celebrity images on or to sell their products will need to be particularly cautious when no endorsement agreement exists.
Topshop are planning to appeal.