Paying the price of fame
Right now it’s the Kate Middleton effect brands want to cash in on, but doing so is not straightforward. Stephen Welfare from Royds LLP Solicitors sifts through the laws surrounding celebrity endorsement
Retailers know that a celebrity name attached to a jewellery or watch brand can help it stand out and consequently boost sales. Recent tie-ins include Rafael Nadal in Richard Mille, Cheryl Cole in Daisy Chakras and Cat Deeley in Links of London, and, unsurprisingly, the brands are keen to promote these happy associations.
Copyright laws mean that the rules around using a celebrity to endorse a brand or product can be a murky shade of grey, and using a deceased’s famous face or a lookalike doesn’t get around the problem either.
So where do brands currently stand when it comes to using celebrities - dead or alive - to endorse their products?
Retaining a celebrity to promote a brand can be very expensive, so companies try to find other ways to get a product associated with the right sort of celebrity without having to pay high endorsement fees.
This must be achieved lawfully, of course, and, with the courts now recognising image rights, the consequences for a company can be significant if it seeks to use a celebrity to promote its business without their consent.
In Irvine v Talk Sport Limited, former F1 racing driver Eddie Irvine sued radio station Talk Sport for using a promotional campaign featuring a picture of him appearing to listen to the station immediately before the British Grand Prix.
Talk Sport had legitimately purchased the photograph, so there was no copyright issue. However, they had manipulated it so that Mr Irvine’s mobile phone appeared as a radio that was tuned to Talk Sport.
Talk Sport did not seek his authority to do this. The judge found in favour of Irvine and said: “It is common for famous people to exploit their names and images by way of endorsement [and that] the lustre of a famous personality, if attached to goods or services, will enhance the attractiveness of those goods or services.”
Would it be OK then to use lookalikes? An attempt to bypass the ruling in the Irvine case appears to have been made by directory enquiries company 118 118. Its adverts feature two runners whose appearance is similar to that of the 10,000 metres 1973 world record holder David Bedford.
Ofcom, the independent regulator and competition authority for the UK communications industries, upheld his complaint that the adverts caricature him without his permission and were in breach of advertising codes.
If celebrities or lookalikes cannot be used without permission, it raises the question, what about dead celebrities? Can a deceased person have any image rights? The logical answer is that he cannot. Image rights may be defined as the term given to all the legal rights that enable a celebrity to capitalise on the commercial value derived from controlling the use of and exploitation of his name, fame and image. If he is dead then his ability to exploit his image must surely have ended.
However, this is not necessarily the case because copyright survives an author’s death. Product endorsement by a famous person can only be achieved, therefore, with the celebrity’s consent. However, a connection with the goods can still be made, and be of commercial benefit, without contravening the celebrity’s rights if, for example, the famous person is photographed wearing the product.
Permission must be obtained to use the photograph as copyright will subsist in it separate to the image rights (if any) of the featured celebrity.
Making a gift of your product to a celebrity who then wears it can bring about an indirect endorsement.
This worked for jewellery company La Diosa, which sent its honeymoon pendant to the Duchess of Cambridge, or Kate Middleton as she was then.
Celebrity endorsement can be valuable and help drive up sales in the particular product, as well as promote awareness of the brand.
Choose your celebrity wisely, however, since bad behaviour on their behalf could create entirely the wrong association with your brand, and always ensure that whatever use is made of a celebrity endorsement, whether dead or alive, it is legal.
It might be said that there is no such thing as bad publicity but, in the commercial world, publicity that proves to be unlawful can be a very bad thing indeed.
Stephen Welfare is a partner at Royds LLP Solicitors, a long established 16-partner city law practice well known for its commercial, retail, property, employment and commercial litigation practices. The firm also provides the BJA’s Copywatch intellectual property service. Telephone 020 7583 2222.
Information in this feature refers to the law at the date the feature was written and is for general information purposes only. It should not be applied to specific circumstances without prior consultation with a solicitor.