The case, Fenty v Arcadia, was the first successful celebrity case of its kind. The three Judges in the High Court unanimously agreed that marketing the t-shirt without Rihanna’s approval amounted to “passing off” despite the fact that previous attempts by other world renowned figures such as Princess Diana and Elvis Presley to protect their image being used by different organizations had failed.
The term “passing off” means making some false representation likely to induce a person to believe that the goods or services are those of another. This essentially protects goodwill but doesn’t create a law of “image rights”.
Although Topshop had the authorization of the photographer to use the image (being the owner of the copyright) legal action was launched by the pop star alleging that the use of her image for fashion was not licensed and would mean that the people buying the T-shirt would be under the false belief that it had been approved by her.
The High Court banned Topshop from selling the T-shirt and so Topshop’s parent company, Arcadia, appealed against this decision. The Court of Appeal has upheld the ban allowing Rihanna’s claim for $5million (£3.3million) to succeed.
Mr Justice Birss in his ruling found that the T-shirt was damaging to her “goodwill” and her reputation in the “fashion sphere”. The Court did however stress that the facts were unusual in that Rihanna had previous links with the store (including publicity appearances) which may have implied an official collaboration.
Lord Justice Kitchen warned that;
“Retailers will have to be extra careful in how they sell items bearing celebrity images. They will need to learn lessons from what happened with Topshop. Anything that is seen as wrongly suggesting an official tie-up or endorsement by the celebrity could lead to legal action.”
This pioneering judgment now highlights the need to clarify the legal rights and obligations surrounding how images should be used by retailers and other organisations. The decision may have opened up an avenue in which a celebrity can exploit their status for a commercial advantage, potentially encouraging other celebrities to make similar claims in the future.
By Lindsay Dixon
Associate Solicitor, Commercial Dispute Resolution Department