By Lisa Y. Wang
In March 2013, pop star Rihanna filed a lawsuit in the United Kingdom against TopShop, the enormously popular fast fashion chain, for using an "unflattering" image of her on one of their t-shirts without her permission (the offending t-shirt can be seen here). Rihanna is claiming £3.5 million in damages (U.S. $5 million). Rihanna alleges that TopShop used the image on the shirt without her permission, and that she is not making any royalties off of the product even though it features her face. She is also particularly upset because the image is very unflattering and the quality of the t-shirts is "poor" stating that "The base image of the first claimant [Rihanna] is of such an unflattering nature that it would not be approved."
According to some reports, Rihanna has been trying to negotiate with TopShop for almost a year regarding the offending shirt, but they have dismissed complaints from her team and offered her a paltry US $5,000. It is interesting to note, and a smart legal move on TopShop’s part, that the shirt is only sold in TopShop’s United Kingdom locations. The reason TopShop can sell the shirts without paying Rihanna a dime is because of a loophole in the copyright laws in the United Kingdom. The loophole gives photographers ownership rights to an image. In other words, the subject of the image, in this case, Rihanna, does not own the image or its copyright. More important, England does not have strict right of publicity laws like the United States. Traditionally, there has been no protection of the commercial value of one’s persona in England.
If the t-shirt was sold in the United States, the outcome of this lawsuit would likely be very different. Unlike the United Kingdom, the law in the United States allows celebrities to enjoy strong property rights in their persona and image under the state right of publicity law. In California, California Civil Code 3344 codifies the right of publicity, stating that, "Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof." In other words, a person who knowingly commercially exploits another’s "voice, signature, photograph, or likeness, in any manner" will be liable for damages. Rihanna’s photograph on a shirt sold in stores seems to fit that description. California even protects the post mortem rights of a deceased personality for seventy years after his or her death.
California’s right of publicity laws have lead to a plethora of lawsuits that often make headlines. For instance, Lindsay Lohan filed a lawsuit against E*TRADE for $100 million for a commercial that featured a baby named Lindsay, accused of being the "other woman" in a baby love triangle. Lindsay claimed that E*TRADE used her name and characterization in business without paying her or getting her approval, essentially alleging that her first name is recognizable like Oprah or Madonna. Kim Kardashian sued Old Navy for casting an actress who looked very similar to her in a commercial, estimating damages at $15-$20 million. Even though Old Navy did not use Kim’s actual name or picture in the commercial, a right of publicity claim can still arise out of the use of a lookalike (the statute above says "likeness") if it trades on the celebrity’s valuable identity. Kim would need to prove that she is readily identifiable from the images in the commercial. In another case, the heirs of Marilyn Monroe lost their case in the Ninth Circuit when the court found that her estate could not assert rights in her name and likeness under California law (rights reportedly worth $27 million a year) because she was not domiciled in California at the time of her death. Unfortunately for Monroe’s estate, the fact that years before they had claimed she was domiciled in New York, not California, in an effort to avoid California’s inheritance taxes, came back to haunt them.
While Rihanna’s lawsuit seems pretty clear cut (if it were filed in California), there are a number of close cases and this is becoming an increasingly murky area of law with new media. No Doubt won its lawsuit against Activision when it alleged an infringement of their right of publicity in the popular Rock Band video game. The game allowed users to unlock features and manipulate the No Doubt avatars to perform songs not approved by the band, among other things. One thing is for sure, right of publicity cases and the law will become increasingly important as technology changes.