Image rights – the debate continues post mortem

In both Australia and the UK, there is no such thing as an “image right” or “right of privacy” which allows a celebrity to control the use of his or her name or image. This was confirmed by the UK High Court in the Rihanna and Top Shop case[i].

Instead both UK and Australian courts rely on the common law torts of passing off and breach of confidence to address cases involving unauthorised use of one’s image. These common law torts however can be painfully difficult to prove and often result in lengthy and expensive litigation.

In the Netherlands however, image rights fall under their copyright law which states that:

“If a portrait is made without the author having been commissioned by or on behalf of the person portrayed, or for his benefit, the rightholder is not permitted to disclose the portrait to the public if there is a reasonable interest opposing disclosure on the part of the person portrayed or, after his death, one of his relatives”[ii]

So conversely to the UK and Australia, the Netherlands not only grants image rights, but, given the explicit wording “after his death”, they appear to extend to post-mortem image rights. This essentially means that image rights in the Netherlands are perpetual, which is an extremely powerful right!

It seems strange then that image rights are not recognised in every jurisdiction.

In the US, image or personality rights fall under State law as opposed to Federal law and there is a wide variation in the extent and duration of protection from State to State, however most states recognise a right to privacy.

In France, initially the position was that image rights terminate with the person’s death[iii], however in subsequent case law it was held that “[t]he right of image is a personality right which entitles anyone to oppose the dissemination and use of his or her image without prior consent”[iv].

Despite most of these other jurisdictions which recognise image rights, it seems absurd that the UK and Australia still lack any specific image or privacy right protection.

However, on 3 March 2016, the NSW Standing Committee on Law and Justice published its Report no 57 Remedies for the Serious Invasion of Privacy in New South Wales, where the key recommendation was to introduce a broad civil cause of action for “serious invasion of privacy” in New South Wales.

Unfortunately the Committee refrained from defining what “serious” means, but one assumes the word will significantly limit the right. Accordingly even if this cause of action is introduced it is unlikely to match the extensive image rights and post-mortem image rights of the Netherlands and other jurisdictions.

We will stay tuned for the NSW government’s response to the Committee’s report which is due by September 2016.

[i] Fenty & Ors v Arcadia Group Brands Ltd (t/a Topshop) & Anor [2013] EWHC 2310 (CH).

[ii] Section 21 Copyright Act (Netherlands) 1912.

[iii] Societe Bonnet v Societe Cashart United Diffusion Moderne [1983] CA Paris 4e ch., June 7 1983, Gaz. Pal. 1984, 2, 259, note Pochon & Lamoureux.

[iv] Les Editions du Sand & Pascito v Kantor [1996] CA Paris, Sept 1996, R.D.P.I, n. 68, 63.