When Topshop obtained a licence of the copyright in a photograph of Rihanna and placed it on a t-shirt, it would never have thought that it would be sued for passing off by Rihanna for use of the photograph.
How did she win? Rihanna won because the High Court decided that despite the copyright licence a substantial number of purchasers would have believed that Rihanna endorsed the sale of the product shirt with her image– because the image was taken from her current album – Talk That Talk, and Topshop had collaborated in the past with trend setting celebrities.
Is this a breakthrough in the law of image rights as applied to fashion items? This case does not herald the beginnings of a separate claim for image rights in the UK but what it does show is that copyright clearance may not always be a “get out of jail free” card – in some circumstances the use and the sale of the item bearing the image can overstep the mark in other ways – in this case creating a liability for passing off.
How much will she get? The next stage will be a separate hearing on the damage suffered by Rihanna. Rihanna is seeking millions, however, any award is likely to be far lower than this amount and will be referenced to a royalty.
Will this open the floodgates to more claims by celebrities against fashion retailers? The likelihood is that other celebrities will try to bring claims, however the real area of concern to fashion retailers, will be those who have copyright “cleared” a celebrity’s image before using it. This judgment shows that copyright clearance may not be enough when it comes to selling products with images of celebrities.