What are Publicity rights?Traditionally the concepts of privacy and publicity have been closely linked. However it wasn’t until relatively recently that the right of publicity grew out of the laws on privacy copyright and trademark and developed in to a distinct and separate legal category.1 The concept of privacy encapsulates ideas about the protection of human dignity. “It recognizes a person as a physical and spiritual moral being and guarantees his enjoyment of his own sense of existence.”2 Thus aspects of human personality like name reputation image voice and privacy are regarded as extra patrimonial rights without monetary value.3 In this context privacy rights may be regarded as quasi human rights.4 On the other hand the right of publicity may be defined as the right of an individual to control the commercial exploitation of his or her name, likeness and persona, and the right to receive remuneration from that exploitation.5 The major catalyst for the emergence of publicity rights as a separate legal category from privacy rights was the decision in the case of Haelan Laboratories v Topps Chewing Gum where in Frank J stated “We think that, in addition to and independent of the right of privacy (which in New York derives from statute), a man has a right in the publicity value of his photograph… Whether it be labelled a “property” right is immaterial; for here, as often elsewhere, the tag “property” simply symbolizes the fact that courts enforce a claim which has a pecuniary worth.”6 Further separating the concepts of privacy from publicity rights is that privacy rights have support from data protection acts, which was used intensively in the Naomi Campbell case,7 where as publicity rights on the other hand are not yet recognized in the U.K 1 Gillian Black 'Recent Developments in Publicity Rights in The UK: Where Now for Celebrities?' in Hugh C Hansen (eds) Intellectual Property Law and Practice Vol 11 (Hart, 2010) 497 2 Neethling, “Personality Rights”, chapter 48, in Elgar Encyclopedia of Comparative Law, ed Jan. M Smits (2006) 530 3 Reiter “Personality and Patrimony: Comparative Perspectives on the Right to One’s Image”, (2001-2002) 76 Tulane Law Review 673at 680, 4 Black above, n1 ,497. 5 R. Penfold, A. Batteson, J. Dickerson ‘How to defend image rights’ M.I.P. 2005, 148 Supp (Brand Management Focus 2005), 19-21. In the Estate of Elvis Presley v Russen (513 F Supp 1339 (1981), 1353). 6 Pg 4 Black 7 Mc Gucking pg 5 Indeed as the arguments that follow make it clear whether or not this right is classed a property right or a right of privacy also depends on what interests the court in question are keen to protect. As a result individuals are able to more effectively control the commercial exploitation of their image. nor are the courts in the United Kingdom especially keen to recognize this right. United Kingdom (focusing mostly on England). This resource base will focus on the issues surrounding the recognition of a right to publicity as defined above rather than the traditional concept of privacy as expressed above. In the United States where the entertainments lobby is especially powerful this right is characterized as a property right. It will then proceed to discuss whether or not such a right should be recognized and if so to what extent. The courts in the different jurisdictions also appear to have different opinions on whether or not this right is to be characterized as a property right. United States and Canada.Whether or not these rights are recognized and the extent to which these rights are recognized appears to differ from jurisdiction to jurisdiction For instance in the United Kingdom this right is not explicitly recognized in any statue as such. or a right of personality. . It will first explore how this concept has been realized in Australia. K The starting position in the United Kingdom is that there is no explicitly recognized right to publicity either in the common law or in statue law. However since then the tort of passing off appears to have been extended by the U. This case was subsequently recognized by the High 8 Tolley v.K 10 Black pg 7 11 tan pg 3 12 tan pg 3 . Fry.C.K Response: Case Law Tort of Passing off The common law tort of passing off was initially designed to defend against competing traders in the same field of business passing off their products as the products of another competitor.12 In Lyngstad and Others v Anabas Products Ltd and Another The Swedish pop group. However the group action was dismissed based on the fact that there was no prior trade by Abba in the field of pillowcase making nor did they have substantial licensing activities in the U. They based their argument on passing off. The group had failed the test for a common field of activity. Indeed the prevalent attitude of the English courts seem to be that view seems to be "some men and women voluntarily enter into professions which by their nature invite publicity. almost as public property”.10 The U..9 Although there is no explicit statue law covering this field there has been some attempt to rely on protections through mechanisms such as registered trademark protection. ABBA sued the defendants for producing and advertising pillowcases bearing the names and photograph of the group. [i]t is not unreasonable in their case that they should submit without complaint to their names and occupations and reputations being treated . 333 9 G. [1930] 467. 477.. 1 K. Here the court held that there was no need for a common field of action with regards to false endorsement and that the action in passing off could succeed.8 As a result these public figures have been forced to try and fit their grievances in to the nearest appropriate legal doctrine in order to seek redress for their concerns..B Black Recent Decelopments in Publicity in the U. Publicity rights in the U. rev'd on other grounds.11 Its stated rationale was to prevent commercial dishonestly.K at the time. and ..B.K are currently derived from the two torts of passing off and breach of confidence. [1931] A.K Courts in the case of Irvine v Talksport where Eddie Irvine a top F1 diver brought an action in passing off against Talksport for the unauthorized usage of a doctored image of him holding a radio branded with the defendants radio station logo on a brochure that was distributed to around 1000 potential clients.Publicity Rights in the U. .Court and the Court of Appeal when the original award of damages was increased from 2000 to 25000 on appeal. OK then went on to appealed this decision at the House of Lords. as there was a requirement for an initial confidential relationship. which was rejected by the court of Appeal. unlike the position in the United States ("right of publicity") or Canada ("appropriation of personality").15 It was stated by the High Court of Australia in Campomar Sociedad. Shortly afterwards Hello magazine which was also interested in the publication of these photographs purchased photographs from a photographer who had gained unauthorized access to the wedding and taken photographs of the wedding. The House of Lords had to decide “What rights does an exclusive licensee have against third parties whose unauthorized actions interfere with the exclusive license. Limitada v Nike International that it should be regarded "as an authoritative statement of contemporary Australian law" that there 13 Black Page 8 14 pg 11 15 John Mc Mullan .Breach of Confidence This is a common law tort that protects private information that is conveyed in confidence. In order for a breach of confidence action to be successful there must be a duty of confidence first. Establishing breach of confidentiality depends on proving the existence and breach of a duty of confidentiality Publicity Rights in Australia As far back The position in Australia is that there is no proprietary right in one's name. Hello magazine then went on to publish these photographs. “ OK was successful in this appeal by a narrow margin as it was able to demonstrate that the photographs constituted confidential information amounting to a commercial trade secret.1314 OK magazine also brought a separate action against Hello for the damages. that they as an exclusive licensee were entitled to enforce their interest in the Douglases commercially confidential information and that the publication of these photographs were unauthorized and infringed this commercial confidentiality. Prior to the case of Douglas v Hello actions this tort was ill suited to protecting publicity rights. In this case the Douglases entered in to a contract with OK magazine giving OK the exclusive right to publish their wedding photographs for one million pounds. Relying on the Human Rights Act 1998 which implemented the European Convention on Human Rights in to English law the Douglases action for breach of confidence and invasion of privacy was successful. The essence of this tort can now be encapsulated as the misuse of private information. image or persona. 18 For instance in the Hutchence (trading as INXS) v South Sea Bubble Co Pty Ltd.19 the plaintiff Hutchinson was able to recover against the bootleg corporation as the t-shirts had not been authorized by the relevant parties even thought the tshirts carried labels stating that they were not authorized by the relevant parties however in the Olivia Newton John case where a look alike played an advertisement which contained a disclaimer that stated “Olivia? No.is no right of publicity or tort of personality appropriation in Australian law As a result Australian cases have been restricted to s52 of the trade practices act and an extended version of the tort of passing off which is based on the decision in Henderson v Radio Corp Pty. Maybelline” the court stated that there was no misrepresentation for the purpose of a s52 claim as the public would not be likely to conclude that the makers of the advertisement were associated with Ms Newton John. How should Personality rights be characterized? There is significant debate among academics as to whether personality rights should be characterized as property rights privacy rights Why should Personality rights be protected? Why should limitations be placed on the protection of personality rights Conclusion 16 17 18 19 E McGukin pg 10 Zapporoni pg 7 McMullen mc mullen . However this approach has been criticized as once courts find that there has been a misappropriation of the plaintiff’s promotional good will the courts look for a misrepresentation to satisfy the relevant tort artificially. which was characterised as a “misrepresentation of endorsement tort” by the Supreme Court of New South Wales16 The expanded form that the tort of passing off has taken in Australia it is said to protect the ability to recommend or promote goods services and or merchandising rights.17 Passing off can be established where consumers are deceived as to whether or not there is a business connection between the celebrity and the defendant that is a misrepresentation which creates a false belief in the minds of consumers that the parties have a commercial arrangement.