On 3 December 2012 Guernsey brought into force its new image rights legislation which allows, for the first time anywhere in the world, for such rights to be registered.
In essence this law has created a new form of intellectual property right for anyone, anywhere in the world, who is famous, or might be in the future, to protect their image by registering it.
The scope of the new law is interesting since it not only covers individuals, for example David Beckham, but also joint individuals (Ant & Dec), groups (Take That) or fictional characters (Batman).
It also provides broader protection than just for the name in that it allows registration for a signature, silhouette, particular features, mannerisms, photographs or illustrations as well. Registration will give the person "Image Rights" and allow them to control the commercial use in addition to stopping other people from infringing upon them.
If people are concerned about privacy, the name or image that is registered will be publically available on the register but the details of the proprietor will not.
Clearly such a right will make it easier for persons to deal with the use of their "Image Rights" in connection with sponsorship, marketing, endorsing of products or services etc. However, the main purpose of this new right is likely to be more to do with tax planning than enforcement.
However, in relation to enforcement third parties must be careful, especially when dealing with online content that may be accessible in Guernsey, that action could be taken against them for infringing these image rights.
Indeed, the recent the copyright dispute over the Star Wars Storm Trooper Helmet suggest that if an infringer is domiciled in England or Wales they could be sued for infringement of a foreign intellectual property right.
It would be interesting to find out, if a test case was brought in the English Court, if the new "Image Right" is tantamount to an intellectual property right allowing the English Court to hear the case.
In addition, as the case would deal with the infringement in Guernsey it may be that damages would be small but it is more likely that the effect and PR of getting a Court Order would be more valuable.
We look forward to finding out how many applications will be made to the Guernsey Registry and, once registered, the level of infringement actions carried out both in the UK and Guernsey.
We will provide regular updates on this issue but in the meantime please consider the following:-
If you are famous, or about to be, consider:
- applying to register your image/other features as Image Rights in Guernsey
- setting up a Guernsey company into which the Image Rights could be placed in order to make licensing easier
- reviewing your wills and succession planning to incorporate the Image Rights
- policing use by third parties of the rights registered as Image Rights and enforcing them
If you are a third party in the advertising, marketing or sponsorship industries you may need to consider:
- checking the Guernsey Registry to ensure you are not using any registered image rights without permission
- excluding Guernsey from accessing any online content.