Rihanna vs Topshop: Three things businesses need to know about using celebrity images and endorsements

 
Kirsten Gilbert
Rihanna fought a legal battle with Topshop (Source: Getty)

Rihanna's “We Found Love” was one of the biggest hit songs of the autumn of 2011.

Some readers may remember the furore surrounding the video shoot when the farmer, whose land the video was shot on, took a dislike to Rihanna’s dancing style and dress sense.

Yesterday, we saw the next instalment in another dispute linked to that infamous video shoot: Topshop’s use of an image of Rihanna- taken while she was on that very video shoot- on a t-shirt it sold in 2012.

In a celebrity-obsessed world, businesses are increasingly turning to celebs to sell and promote products. Think David Gandy in M&S pants, Cara Delevingne as the face of Mulberry, or David Beckham putting his name to an H&M collection. In many cases, these collaborations are authorised by the celebrity in question but this may not always be the case.

What does this case mean for these type of collaborations? The details of the case are key.

Rihanna took issue with the use of the image, taking Topshop to court and securing victory against the Arcadia-owned retail chain in 2013 on the basis of “passing off”.

After an appeal from the fashion retailer, the Court of Appeal yesterday also found in favour of Rihanna.

Unlike in the US and some other countries, celebrities do not own the exclusive right over the use of their image in the UK. So instead, Rihanna claimed Topshop was passing off her image as if she had given her endorsement to its use on the t-shirt.

The singer's lawyers argued the combination of several factors meant the public would likely think there was an official connection between the singer and the t-shirt on sale.

The relevant factors were threefold:

  1. The publicity generated by the controversial video shoot.
  2. Rihanna’s use of similar images to promote her “Talk, Talk, Talk” album.
  3. Topshop’s previous connection to the music artist through a competition for a personal shopping trip with Rihanna, and tweets it had put out such as “Ridiculously excited! @Rihanna is in our Oxford Circus store as we tweet. Ah, wonder what she'll buy…”.

Because there is no specific image right in the UK and because, in most cases, you cannot trademark your own image, there are many outlets using celebrity images on their products – not just clothing.

These three key points of the case make it clear: the public won't believe that the product has been endorsed by that celebrity solely because the name or image of a celebrity appears on a product.

Businesses and brands will have breathed a sigh of relief that the decision of the Court of Appeal in the Rihanna Topshop case has not tried to limit significantly the use of celebrities’ faces on their creations.

This is good news in our image-obsessed times where the visual side of celebrity is so important.

The concrete take away points for the fashion and retail industry are:

  1. Yes, it is OK to use a celebrity’s image on products in general without their permission providing you do not give the impression that the use is authorised by the celebrity.
  2. But, businesses should be particularly careful if they have had a previous connection to the celebrity.
  3. And, if the image employed has previously been used specifically for publicity by the celebrity.

Beyond the law, the fashion and retail industries will be looking at this case wondering whether it will have threatened future celebrity collaborations for Topshop and whether other celebrities may follow Rihanna’s example in identifying ways to try to oppose unauthorised uses of their image.

While the law has not changed, these factors could potentially make the industry more cautious about adding famous faces to their products in the future.

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