Rihanna successful in Topshop t-shirt claim
Pop star Rihanna has successfully sued Topshop for passing off for selling t-shirts featuring her image without her consent.
In the UK (unlike the US) celebrities have no specific right to their own image. Instead they have to rely on the law of passing off to help them protect their image. In the case (Robyn Rihanna Fenty & Others v Arcadia), lawyers for Rihanna claimed that she had established a reputation in the UK and that the unauthorised use of her image had lead the general public to believe that the t-shirts were endorsed by her which had caused damage to her brand.
Lawyers acting for Topshop denied that there had been any misrepresentation and claimed that Rihanna’s team were attempting to assert the concept of ‘image rights’ in the UK noting that her lawyers had spent a long time during the case cross-examining witnesses in relation to image rather than focusing on the fundamental elements for a passing off claim.
In the High Court judgement, Mr Justice ruled in Rihanna’s favour finding that “a substantial number of purchasers are likely to be deceived into buying the t-shirt because of a false belief that it has been authorised by Rihanna herself“.
The case was definitely decided on its facts. Weight was put on the fact that Topshop had previously been involved with celebrity endorsements (such as its collaboration with Kate Moss) and Rihanna’s contract with River Island (a competitor of Topshop) was also an important factor. The judge stated that “To someone who knew Rihanna but did not know her current work, the image is simply one of the person concerned. However to her fans who knew her work, I think this particular image might be well thought to be part of her marketing campaign for that project”. Referring to the t-shirt, he also commented that “The fact it is on sale in a high street retailer is neutral. The fact the high street retailer is Topshop is not neutral. The links between Topshop and famous stars in general, and more importantly the links to Rihanna in particular, will enhance the likelihood in the purchaser’s mind that this garment has been authorised by her”.
The decision does not mean that every unauthorised use of a celebrity’s image will give right to a successful passing off claim. The judge stated that “the mere sale by a trader of a t-shirt bearing an image of a famous person is not an act of passing off” and he made it clear that his decision did not establish an ‘image right’ in the UK or extend the existing laws on privacy. His decision was based solely on the three elements for a successful passing off action: goodwill, misrepresentation and resulting damage. However, the case does illustrate the need for retailers to be cautious when using images of celebrities on products in order to avoid confusing customers and opening themselves up to passing off claims.