A lot of designers and makers want to know if it’s ok to use pictures of famous people in their work – for example, can you use your own illustration of the actor Benedict Cumberbatch on a brooch? We asked Niall Head-Rapson, director of copyright specialists McDaniel & Co. Solicitors, to explain UK copyright law and how copyright applies to celebrity images, and whether using illustrations of famous actors, singers, celebrities or pop stars in your handmade designs is allowed.
Can I use an image of a celebrity?
The short answer is no. You can’t use an image of a famous person lawfully without the permission of the celebrity concerned.
So why can’t I, then?
Well, let’s get one thing out of the way. It is nothing to do with the law of privacy. It’s all to do with something called ‘goodwill’ and sometimes trademarks. These are things that arise in the course of someone’s business.
But celebrities aren’t businesses, are they?
Well, yes they are. Yes, in the case of Benedict Cumberbatch, for example, he is an actor, but he will also carry out endorsements of products, speaking arrangements, not to mention his normal work, in Benedict’s case, as an actor. That is his business.
So what’s this goodwill, then?
Goodwill is an English legal concept that basically protects somebody’s reputation. It is the reputation in your business that is protected and you can fall foul of the law of ‘passing off’. I’m sure we have all heard of that?
But I’m not trading off Benedict’s reputation, he’s an actor?
Ah, well, you see, what you are doing is implying that you are authorised by Benedict to produce the jewellery – that he has endorsed your product. Unless you have Benedict’s permission, then that is not correct – and if he wants to, he can stop you.
But I’m not saying that.
Well, unfortunately the Courts don’t agree. There have been a number of cases over the years where the law has come down on the side of the celebrity. The first such case was Eddie Irvine, who successfully sued Talk Sport for using a picture of him in their adverts. The Court said that Mr Irvine would have lost out on a fee. Recently Rhianna had her image posted all over a t-shirt at Topshop. She used the same argument and was successful. Topshop have appealed the decision as far as they can and have lost at every hurdle
Oh… but you mentioned trademarks?
Yes, a lot of celebrities and celebrity organisations have their names registered as trademarks for merchandise. So if you were calling the brooch a ‘Benedict Cumberbatch brooch’, then you would more than likely be infringing any registered trademarks he had.
But I’m using a photograph that I took. That’s my copyright.
It may well be your photograph or your illustration (or even your illustration from your photograph!) and you may well own the copyright on it. The difficulty is that intellectual property rights run side by side. So if you used it on some of your products in the course of your business, then you would succumb to the law of ‘passing off’ and possibly trademarks. So it doesn’t help, really.
So what can I do?
Well, to be selling something lawfully involving the image of a celebrity, you will need their permission. Some will say yes and some will say no – and some will say yes, as long as you pay me.
You can also try to get round this by saying in a very large script that the item is “unofficial” or “not endorsed by” but this may not be enough. It certainly won’t stop an annoyed celebrity talking to you about it.
Well, I haven’t had any problems yet.
That’s by the by. If you don’t have permission, then if the relevant celebrity decides to take umbrage, you are taking that risk. Some celebrities don’t mind, but others most certainly do. If you do create products for your Folksy shop and you don’t have permission from the relevant celebrity, don’t say I didn’t warn you.
Niall Head-Rapson is director of McDaniel & Co. Solicitors – a niche Intellectual Property practice based in Jesmond, Newcastle upon Tyne, and ACID affiliate. If you have specific copyright questions, email email@example.com
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