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Legal protection of athletes’ image rights in the United Kingdom

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Abstract

The concepts of image or personality rights for athletes and other well-known persons are not generally legally recognised in the United Kingdom. Such protections are usually garnered through oblique utilisation of other rights, not necessarily aimed at the protection of image. As a consequence protections are varied and context dependent, based on no underlying rationale or principle. The result is that athletes whose image and personality provide them significant commercial opportunities must resort to a fragmented patchwork of legal protections in order to maintain their exclusivity and thus value in those ‘rights’. Similarly, while the introduction of the Human Rights Act 1998 has enhanced protections for personal, private information of a non-confidential nature, these protections remain narrow and, because of the high-profile nature of many athletes, limited in their scope of application.

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Notes

  1. This article focuses predominantly on the law as it pertains to the jurisdiction of England and Wales, but the law appears to be broadly similar in respect of the rest of the United Kingdom. There is, in particular, a developing literature in this area as it pertains to Scotland, see: Whitty and Zimmermann (2009) and Black (2010).

  2. The term “athlete” is used throughout to denote participants in sporting activity; it is intended to be read broadly and is not limited to, for instance, participants in track and field athletics.

  3. See generally, Parker (2009).

  4. See Ministry of Justice (2014). This monitoring was introduced in 2010 as a result of judicial concern regarding the perceived growth in applications for privacy injunctions.

  5. Drake (2007).

  6. Bains (2007) and Walsh (2013b). See also Black (2011a) for a discussion of publicity rights premised on autonomy and dignity.

  7. Bains (2007), p 206.

  8. Biene (2005), pp 520–522. For a review of these competing values see Goodenough (1997).

  9. Reid (2012).

  10. For an excellent and in-depth overview of the issues relating to legal protection of publicity rights and image see Black (2011b).

  11. Clause 1.1 Premier League Contract; for an interesting discussion of the status of such clauses in the context of European Union competition law see, O’Leary (2011), p. 178.

  12. Walsh (2013a), pp 259–260.

  13. Ahmad and Levinger (2012). See on the commodification of image and the deployment of image rights: Haynes (2004) and Haynes (2007).

  14. Hackleson (2014).

  15. See HMRC CG68420 – Intellectual Property Rights: assignment of image rights: http://www.hmrc.gov.uk/manuals/cgmanual/CG68420.htm (last accessed 15 February 2015) and commentary on this in Johnson (2015).

  16. Sports Club v Inspector of Taxes [2000] STC (SCD) 443; see also Revenue and Customs Commissioners v Portsmouth City Football Club Ltd (In Administration) [2011] BCC 149.

  17. Craggs and Mellors (2011), pp. 175–176.

  18. [2012] 2 All ER (Comm) 815; see generally on this case Sweeney and Castro (2010). See also NVA Management Ltd v Martins [2010] EWHC 80 (QB) in relation to a dispute arising out of agreements in relation to image rights.

  19. [1931] AC 333.

  20. [1947] 2 All ER 845.

  21. Reckitt and Coleman v Borden Inc [1990] 1 All ER 873; though this action was brought on the basis of Spalding v Gamage (1915) 32 RPC 273.

  22. [1991] FSR 145.

  23. Unreported (1997) 6 June, see case note at [1997] 5 EMLR 94.

  24. [1998] FSR 665.

  25. [1977] FSR 62.

  26. At 67-68.

  27. (1984) RPC 501.

  28. See also IPC Magazines Ltd v Black and White Music Corp [1983] FSR 348 in which the High Court refused injunctive relief in relation to the unauthorised use of the character Judge Dredd on a record. It was held by the court that the claimant was unlikely to suffer damage.

  29. [1975] FSR 479; see also Wombles Ltd v Wombles Skips Ltd [1975] FSR 488 where the lack of a common field of activity precluded the proprietor of a children’s book from restraining a skip company from adopting the name of the fictional characters, this despite the fact that the claimant was active in licensing images of the characters for goods and services.

  30. Harrods v Harrodian School Ltd [1996] RPC 697; see also the case of Henderson v Radio Corporation [1969] RPC 218, case from the common law jurisdiction of Australia.

  31. Though note that Australian case law has developed to the point where an action in passing off has been successful despite the absence of goodwill, because of the extremely high profile of a well-known person. In Pacific Dunlop v Hogan (1988) 83 ALR 403 the actor Paul Hogan was able to bring a successful passing off action against a shoe manufacturer which associated itself with his “Crocodile Dundee” character by emulating a scene from one of his films in a television commercial. Hogan was of such a high profile, and the character so closely associated with him that the Australian court ruled that the advertisement could not be broadcast without a disclaimer, disassociating Hogan from the product.

  32. [2002] 1 WLR 2355, [2003] EMLR 6.

  33. At paragraph 39.

  34. At paragraph 43.

  35. At paragraph 9.

  36. At paragraph 58.

  37. [2002] EWHC 539.

  38. [2003] EWCA Civ 423.

  39. [2015] EWCA Civ 3.

  40. [2013] EWHC 2310 (Ch).

  41. At paragraph 46, per Kitchiner LJ.

  42. At paragraph 48, per Kitchiner LJ.

  43. At paragraph 63.

  44. Harrington (1999).

  45. ss. 10(1)–(3) Trade Marks Act 1994.

  46. s. 46(5) Trade Marks Act 1994.

  47. s. 11(2)(b) Trade Marks Act 1994.

  48. ELVIS PRESLEY Trade Marks [1997] RPC 543.

  49. See also DIANA, PRINCESS OF WALES Trade Mark [2001] ETMR 25.

  50. Arsenal Football Club Plc v Reed (No. 1) [2001] RPC 46.

  51. Case C-206/01 Arsenal Football Club Plc v Reed [2003] RPC 9.

  52. Arsenal Football Club Plc v Reed (No. 2) [2003] RPC 39.

  53. Arsenal Football Club Plc v Reed (No. 2) [2003] EWCA Civ 696 Interestingly, however, a similar case was decided in a different way. In Rugby Football Union v Cotton Traders Ltd [2002] EWHC 467 the High Court determined that the red rose Mark registered as the England national team emblem was not infringed by its use on unofficial rugby jerseys. This was determined on the basis that the public would not associate the Mark with the organisation, but rather with the national team. Thus, it was not capable of representing that the Rugby Football Union was the source of the goods.

  54. [2003] 3 All ER 996; [2006] QB 125.

  55. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479. See more generally TMC Asser Instituut/Asser International Sports Law Centre and Institute for Information Law – University of Amsterdam (2014), pp 25–29 for an overview of the position across European Union Member States.

  56. [2003] FSR 26.

  57. Nominet UK Dispute Resolution Service DRS Number 0344, Michael Owen and Owen Promotions Ltd v Alliance of Enfield (2006) Decision of 23 March.

  58. Nominet UK Dispute Resolution Service DRS 03844, Stoneygate 48 Limited and Wayne Mark Rooney v Huw Marshall (2006) Decision of 5 October.

  59. Section 3.47.

  60. David Bedford v The Number (118118) Outcome of OFCOM Content Board (2004) 27 January, available from http://stakeholders.ofcom.org.uk/enforcement/advertising-complaints-bulletins/appeal-the-number-david-bedford/ (last accessed 28 February 2013).

  61. [1991] FSR 62.

  62. See generally, Bennett (2010a, b).

  63. [2003] QB 195.

  64. [2002] EMLR 398.

  65. [2004] 2 AC 487.

  66. [2008] EMLR 20.

  67. Mosely v News Group Newspapers Ltd [2008] EWHC 687 (QB).

  68. Mosely v United Kingdom (2011) 53 EHRR 30.

  69. Terry v Persons Unknown [2010] EMLR 16.

  70. At paragraph 104.

  71. See on this point Callery (2010).

  72. [2011] EWHC 2454 (QB); see on this case Communications Law (2011).

  73. McClaren v News Group Newspapers Ltd [2012] EMLR 33.

  74. On the balance of privacy and public interest for public figures, in particular England football managers, see Mead (2006).

  75. Note that – although the damage which may be caused to the family life of the person about whom information is to be revealed has had a minimal impact in swaying courts to restrict publication – children of well-known people have been judged to be deserving of protection against intrusive media intervention, including the taking of photographs in a public place, Murray v Express Newspapers [2009] Ch 481. Note also that the law relating to data protection has also had a small impact in the control of image and other private information – in both Douglas v Hello! and Campbell v MGN the claimants were awarded nominal sums in relation to the breach of their data protection rights. More recently in Weller v Associated Newspapers Ltd [2014] EWHC 1163 (QB) data protection breaches appear to have been regarded as secondary to the common law breach; see Foster (2014). However, in Murray the Court of Appeal suggested that a remedy for breach of data protection rights might extend to an account of profits and thus provide a more meaningful outcome for claimants. On this basis, action under the Data Protection Act 1998 may become more prevalent in this area. See on this point Brimsted (2008) and Boyd and Jay (2004).

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  1. Nottingham Law School, Nottingham Trent University, Nottingham, NG1 4BU, UK

    Simon Boyes (Director, Centre for Sports Law)

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Boyes, S. Legal protection of athletes’ image rights in the United Kingdom. Int Sports Law J 15, 69–82 (2015). https://doi.org/10.1007/s40318-015-0067-7

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