In a recent case, Rihanna objected to the UK sales by Topshop of tank tops bearing a photograph of her. English law has never developed to give celebrities rights in their own image so Rihanna’s case was that a significant number of purchasers would believe she had endorsed these t-shirts when she had not. Rihanna won on this basis, of Topshop having “passed off” on her goodwill, in the High Court and, following Topshop’s appeal, again in the Court of Appeal.
Two things put Topshop in the deep shade of Rihanna’s style umbrella. One was the look. The photo on the tank top is striking, showing the head and shoulder of the star with her hair up in headscarf and wearing a bralet similar in style as she had just used in promotion of the ‘Talk That Talk’ album. Second were the prior associations of Rihanna with Topshop. Rihanna had been involved with Topshop before the tank top. She had offered a personal shopping appointment to a Topshop competition winner. She had also visited Topshop’s flagship store about which the @Topshop tweet was “Ridiculously excited! @Rihanna is in our Oxford Circus store as we tweet. Ah, wonder what she’ll buy…”.
The extent of the shading under Rihanna’s style or goodwill umbrella (which shaded out Topshop’s tank top) was emphasised by the summary of the prior judgment by Lord Justice Kitchin:
- Rihanna is a style icon to many young women(paragraph 11 of the judgment).
- Topshop permissibly used her position as a style icon for their involvements with her, (para.19).
- Rihanna has a very large merchandising and endorsement business, (paras.7-10).
- Rihanna’s fans thought the tank’s photo came from her album’s publicity, (para. 21).
- Crucially fans thus thought (wrongly) that the tank was approved by her, (para. 22).
There has been a lot of comment on the case and some speculation that the judgment heralds an extension of celebrity rights in UK. It does not. Mr Justice Birss states it plainly at the end of his judgment:
“The mere sale by a trader of a t-shirt bearing an image of a famous person is not, without more, an act of passing off. However the sale of this image of this person on this garment by this shop in these circumstances is a different matter…”
Topshop has passed off on Rihanna’s goodwill in that a significant number of purchasers of the tank top believed it was endorsed by her. Rihanna’s umbrella caught Topshop in the shade.
This article was written by Tom Broadhurst, an Intellectual Property and IT Law Consultant for Boodle Hatfield LLP.
Tom Broadhurst © 2015
Image attribution here.