Celebrities have never had a monopoly over the commercial use of their photographic images – but allowing a retailer to sell a T-shirt emblazoned with a pop star’s iconic photo would amount to deception of the public, the Court of Appeal has ruled.
The case concerned a world-famous singer who objected to the sale of the garment. The copyright in the image was owned by a photographer who had licensed its use by the retailer. However, the singer argued that many of those who bought the £22 T-shirt, in particular fans who viewed her as a ‘style icon’, would have been misled into believing that she had endorsed it. On that basis, she succeeded in a passing off claim and a judge ordered the retailer to withdraw the T-shirt from sale.
In dismissing the retailer’s appeal, the Court found that the singer had ‘a significant reputation and goodwill’ and that the appearance of her striking image on the T-shirt gave rise to a ‘false message’ – which would have been understood by a not insignificant number of purchasers – that she had endorsed, recommended or approved the garment.
The T-shirt’s sale amounted to a ‘false representation’ that the garment was in some way connected to the singer and that she was ‘materially responsible’ for its quality. Although the singer had no general right to prevent commercial exploitation of her image, the Court recognised the practical reality that to allow continued sale of the T-shirt would be to ‘sanction a trade which results in the deception of the public’.