PUBLICITY RIGHTS

Question 1

1. is there a Right to publicity in English law?
2. What do we use instead?

Answer 1

1. no
2. a patchwork of legal rights that can be used to protect aspects of a person’s image and personality
3. copyright - CDPA 1988
4. Passing Off - Common Law
5. Right to be Forgotten
6. Misuse of Private Info
7. Confidential Info

Question 2

what can be protected with copyright?

Answer 2

photos or videos

Question 3

what is passing off?

Answer 3

1. a common law tort
2. all about misrepresentation
3. can be used by a celebrity to prevent a false representation of endorsement to a brand, product etc
4. very fact specific

Question 4

what are the 3 elements needed for passing off?

Answer 4

1. celeb must have significant goodwill/reputation
2. use of image constitutes misrepresentation to a significant section of the market
3. must be damage to goodwill of individual

Question 5

what are the relevant cases for passing off?

Answer 5

Irvine v Talksport 2002 (affirmed 2003)
- set out the three elements
Fenty v Arcadia Brands 2013 (affirmed 2015)
- J Birss stated - ‘substantial amount of people deceived’

Question 6

what is misuse of private information?

Answer 6

1. common law tort
2. protects a person from unauthorised publishing of images/info of them
   info must be private
3. there must be a reasonable expectation of privacy
4. requires balancing of Art 8 and Article 10

Question 7

What is commercial confidential info?

Answer 7

1. similar to misuse but with a commercial aspect
2. relates to Douglas v Hello! 2001
3. must show info had necessary quality of confidentiality and disclosed in circumstances that give rise to duty of confidentiality
4. if info already in public domain it cannot be protected
5. if it is in public interest it may be allowed to be published

Question 8

what is the right to be forgotten?

Answer 8

can request a search engine to prevent links about you appearing
Article 17 GDPR
relates to google v AEPD case
called delinking

Question 9

what was the outcome of McCulloch v Lewis 1947?

Answer 9

for passing off, must be in same/common field of trade

Question 10

1. what is not needed for appropriation of personality compared to passing off?
2. difference between AoP and Passing Off?

Answer 10

1. misrepresentation
2. AoP - more on individual’s right to control commercial exploitation of their image/voice etc

Question 11

publicity rights in australia?

Answer 11

they use the law of passing off (common law jurisdiction)
Key case of: HENDERSON V RADIO 1969
- swept away McCulloch in Australia
- injunction awarded despite not in same field
PACIFIC DUNLOP V HOGAN 1989
- misleading as people would associate the ad with Crocodile Dundee

Question 12

publicity rights in Canada?

Answer 12

common law recognises a limited right to personality
KROUSE V CHRYSLER 1973
- There is a marketable value in likeness
- if used to endorse something without authorisation it is grounds for appropriation of personality
GOULD V STODDART 1996
- Simply writing about someone, even to generate a profit, does not constitute appropriation of personality

Question 13

publicity rights USA?
cases?

Answer 13

rights based in tort - similar to Prosser’s privacy criteria

BROWN V EA 2013 (Passing Off)
- dismissed false endorsement under Lanham Act and stated 1st Amendment protects unauthorised trademark if it does not explicitly mislead

KELLER (IN RE NCAA) 2016 (Publicity)
- cannot use someone else’s image for commercial purpose unless transformed figure sufficiently