The unauthorised use of a person’s image - often described as “image rights” - has come into sharp focus following a series of high-profile celebrity disputes with global brands. Businesses frequently use photographs, likenesses or references to well-known individuals in advertising and product branding, sometimes without clear consent. Often the key legal question is whether that use creates a false impression of endorsement or affiliation.
In the UK, there is no standalone “image right”. This means individuals cannot automatically prevent the commercial use of their likeness. Instead, claims are typically brought under the law of passing off, which protects against misrepresentation. By contrast, US law recognises a broader “right of publicity”, which can often give individuals better control over the commercial use of their identity.
Key US cases
In Zacchini v. Scripps-Howard Broadcasting Co. 433 US 562 (1977), the US Supreme Court held that the First Amendment did not bar a state law claim where a broadcaster televised a performer’s entire act without consent, recognising the commercial value of performance and identity.
In Comedy III Productions, Inc v Gary Saderup, Inc 25 Cal 4th 387 (2001), the California Supreme Court developed the “transformative use” test to balance the right of publicity against freedom of expression. The court held that liability would arise where a work appropriates a celebrity’s likeness without adding significant creative elements, such that its value derives primarily from the celebrity’s fame rather than the defendant’s own expression.
In Cairns v Franklin Mint Co 292 F 3d 1139 (9th Cir 2002), the court emphasised that the use of a celebrity’s image will only infringe under the Lanham Act where it gives rise to a false suggestion of endorsement or approval. The decision illustrates that, despite the broader protection available in the US, liability remains closely tied to whether consumers are likely to be misled.
UK legal position
The UK does not recognise a standalone image right. Instead, claimants must rely on a combination of legal causes of action, most notably passing off, alongside claims for copyright infringement, misuse of private information, data protection and breach of confidence, where applicable.
For a successful claim in passing off, a claimant must establish:
- goodwill and/or reputation attached to their name;
- a misrepresentation leading the public to believe there is an association or endorsement; and
- damage to that goodwill and/or reputation.
Key UK cases
The leading authority is Irvine & Ors v Talksport Ltd [2003] EWCA Civ 423. Formula One driver Eddie Irvine successfully brought a passing off claim after a radio station distributed promotional materials suggesting that he endorsed its services. The Court of Appeal confirmed that implied endorsement could amount to actionable misrepresentation, and awarded damages assessed by reference to a reasonable endorsement fee rather than purely compensatory loss.
In Robyn Rihanna Fenty, Roraj Trade LLC, Combermere Entertainment Properties, LLC v Arcadia Group Brands Ltd (t/a Topshop) and Topman Ltd [2015] EWCA Civ 3, Rihanna succeeded in preventing Topshop from selling t-shirts bearing her image, even though the retailer had obtained a copyright licence from the photographer. The Court of Appeal held that the sale amounted to passing off because consumers were likely to believe that the product had been authorised by Rihanna. Important factors included her status as a style icon, the similarity of the image to her authorised promotional material, and Topshop’s established practice of celebrity collaborations, including a previous association with Rihanna. The court stressed, however, that the decision did not create a general right to control images; liability remained highly context-specific and turned on consumer perception.
Conclusion
While the US recognises a right of publicity, the UK relies on passing off to address the unauthorised use of an image and/or celebrity endorsement. This means there is no automatic right to control the use of a “likeness” in the UK: liability depends on whether the use misleads consumers into believing there is an endorsement or commercial connection.
For brands, the use of a person’s image without consent always carries legal risk. That risk is particularly acute where the context suggests endorsement, collaboration or commercial association, especially in advertising, packaging or social media campaigns. Businesses should therefore assess image use carefully and obtain appropriate clearances, especially for high-profile campaigns or cross-border marketing where US publicity rights may apply.
