By Alec Schulman
It is clear that our world has become dominated by the entertainment and sports markets. As these markets have grown, so has the notoriety of individuals affiliated with them. Athletes, actors, models, and musicians who wish to commercialize their “personas” often choose to partner with corporate entities looking to create mutually beneficial relationships.
However, due to the non-uniformity of laws between governments, these individuals often find themselves navigating complex legal doctrines, requiring skilled attorneys to walk them through the commercialization process and take action against unauthorized parties seeking to profit off of their likeness. As globalization has gripped the globe, it is becoming increasingly clear that harmonization among the various governments is key to furthering the advancement of these markets for individual actors operating within them. This comparative analysis will discuss the laws of the United States, The United Kingdom, and the European Union and how their doctrines differ.
The United States
Internationally, no country comes close to the United States in terms of revenue generated by the media and entertainment industry. “The U.S. Media and Entertainment market alone represent a third of the global market and has reached approximately $771 billion by 2019, up 8.6 percent from 2016.”  As a result, the United States has arguably the most sophisticated rules governing the personas of famous persons operating with the Entertainment and Sports Industries.
In order to understand the United States system, one must understand the Right of Publicity. This right was first discussed in the case of Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc, where competing chewing gum companies used the likeness of a baseball player to appeal to consumers. One of the companies had contracted with the player, the other had not.  The Court ruled that the right of publicity could protect an individual from unauthorized usage of their identity.  The right of publicity for the first time was distinguished from the right to privacy. While the latter safeguarded one from humiliation or distress, the former protected the value of one’s identity.
But plaintiff, in its capacity as exclusive grantee of player’s “right of publicity,” has a valid claim against defendant if defendant used that player’s photograph during the term of plaintiff’s grant and with knowledge of it. 
The doctrine has become codified within our jurisprudence, rendered legitimate by the United States Supreme Court.  While the Supreme Court has recognized this right, it is still a state regulated right. It can be summed up as the following: “the inherent right of every human being to control the commercial use of his or her identity.”
While the laws vary from state to state, the most common elements for the right of publicity are:
- Use of someone’s name, identity, likeness or persona;
- Through which use the defendant received a commercial advantage
- The use was made without the person’s consent; and
- There is injury to the plaintiff
As mentioned, these protections extend broadly to both the core of an individual’s identity as well as tangential elements the celebrity may seek to protect. These protections may extend to an individual’s name, nickname, former name, pseudonyms, voice, or image. For example, in the case of Vanna White v. Samsung Electronics America er al., the defendant’s use of a robot dressed in a blonde wig and dress posing next to a Wheel of Fortune game violated Vanna White’s right to publicity. The court found that the defendant sought to profit off of the plaintiff’s identity using traits associated with her persona.
Multiple cases have recently come out, highlighting interesting areas within this doctrine of law. There are inherent conflicts between the 1st Amendment and the right of publicity as the right of publicity is limited under the 1st amendment. This is because while the United states guarantee the freedom of expression, this right can be limited when one uses and oftentimes capitalizes off of someone else’s image and likeness.
This has come up under a line of cases within the world of video games. Many video games such as Madden, FIFA and NBA 2K use the names and likenesses of professional football players. Under this line of cases, athletes claimed that game developers’ unauthorized use of their names and likeness infringed upon their right of publicity. The courts here were made to employ the “transformative use test”. Very similar to the doctrine of fair use in copyright law, a judge must analyze in a given case whether or not a product which houses an individual’s name and likeness is so transformed that it has become the defendant’s expressions instead of the individual’s likeness.
In No Doubt v. Activision Publishing, Inc., the court found that the defendant game developer for the game “Band Hero” did not transform the plaintiff’s name and likeness to the extent required. The Court ruled this way because the characters in the game were exact replicas of their real-life counterparts and were engaged in the exact same type of activity that made them famous in the first place. Here we see the defendant attempt make a defense upon the theory of freedom of speech. Cases where free speech is not a sufficient defense include:
- When there is not a sufficient connection between what is newsworthy and the appropriation of the identity; or
- When it is obvious that the identity appropriate, has been profitable.
There are also the questions of whether or not a use is used for pecuniary gain or for educating the public. A recent case involved the NFL’s use of athletes’ name and likeness within documentary material. The players wished to be compensated for the NFL’s use within these materials. Essentially the question rested upon whether or not the inclusion of the players images was commercial or non-commercial speech. The court there found that the use of the players images was non-commercial speech as the films were not only used to achieve pecuniary gain. There are a myriad of other issues that exist which exhibit how complex and sophisticated the United States Right or Publicity doctrine can be.
Image rights in Europe vary state by state. For example, France’s image rights differ vastly from the United Kingdom’s. This difference can first and most readily be attributed to the fact that the two states operate in different legal traditions. The United Kingdom operates within the common law tradition, and France operates within the civil law tradition. In general, most of the European countries recognize some form of the right to privacy or right of personality. The commonalities between the various countries are covered below.
1. United Kingdom
Going from the lowest level of protection, we first discuss the United Kingdom and how they approach image rights. The English courts explicitly mentioned this in the highly publicized legal battle between pop star Rihanna, and fashion giant Topshop. This case is particularly instructive on how the United Kingdom deals with issues within the image rights and right of publicity doctrines.
In this case, Rihanna brought a claim against Topshop for damages of $5 million following the sale by Topshop of t-shirts featuring a photograph of Rihanna. There the court said that there is no existence of an image right or character right within the United Kingdom. However, Rihanna brought her claim under the tort of “passing off”.
Passing off claims require three elements to be satisfied:
- The claimant must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying “get-up” (whether it consists simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the get-up is recognized by the public as distinctive specifically of the plaintiff’s goods or services.
- The claimant must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff.
- The claimant must demonstrate that he suffers or … that he is likely to suffer damage by reason of the erroneous belief engendered by the defendant’s misrepresentation that the source of the defendant’s goods or services is the same as the source of those offered by the plaintiff.
The Judge in the Rihanna case made clear that the law of passing off was designed purely to protect an individual’s goodwill of their product and to stop another from passing off his or her goods or services as those of another. Applying the facts to the elements of the case it was clear to the Appeals court that Topshop attempted to pass off their product as Rihanna’s. The court found that Rihanna amassed good will as an internationally acclaimed performer, and that the sale of these shirts caused damage to Rihanna as a business, diluting her market share and taking away the control over her reputation.  What is interesting is that there was no factual proof that consumers were deceived into buying the shirt as a result of a false belief that it had been authorized by Rihanna.
The court made it clear that the doctrine of image rights does not exist within the United Kingdom. Alternatively, the courts find that in order to find a remedy in the realm of image rights, a claimant in the UK must rely on a different cause of action, such as breach of contract, breach of confidence, infringement of copyright or passing off. This piecemeal approach differs wildly from the expectations set forth in other nations that are so relevant on the global entertainment and sports stage. Alternatively, there are a host of other European Union nations which do recognize image rights and offer more protection to individuals looking to seek protection.
France does recognize the protection of image rights. This conception is known as “Droit a l’image.” This doctrine protects “likeness, voice, photograph, portrait, or video reproduction.” This right has changed over time, at once only existing as a privacy based right, it now is concerned with protecting economic interests. As a result, the broad concept of personality rights within France include “the moral rights of authors; the right to privacy, the right to protect one’s honor and reputation, and the right to control the use of one’s image.” Common defenses to these claims include:
- The individual bringing the claim consented to the use
- The use was acquired within a public place
- The use was made for the furtherance of the freedom of the press and for the public interest.
France’s robust protection of individuals image rights were outlined in the two recent cases of Mrs. X v SARL Denim, and Mr. X v. Umanlife. In the former, a model who was photographed and compensated for her work for a photoshoot, brought a claim against the designer and clothing company when the company used her image in a collection catalogue and put it up on social media. There, the court found that participating in a photo shoot for the purpose of advertising doesn’t mean the individual consented to every form of commercialization. This is especially true when the image was used outside the scope of what the model initially would have expected.
The latter case concerns the extent to which recognizability plays a factor. A model participated in an advertising video for a start-up company. After the term of the contract expired, the company simply blurred the model’s face in order to keep the content up. The model then brought an image rights claim against the company, arguing this infringed upon his image rights. The court agreed, finding that blurring the face of a model does not end the breach of his or her image rights when the rest of the body is still featured in the film.
Spain’s constitution offers extraordinarily high protection in the realm of personality rights, some scholars finding that it extends beyond that of the United States. Spain’s constitution guarantees and deems fundamental the right to honor personal and family privacy as well as the right to one’s own image. Like other jurisdictions, Spain prohibits “the taking, reproduction, or publication, by photography, film, or any other process, of a person’s image captured in places or moments of his private life or outside of those settings” and “the use of the name, voice, or picture of a person for purposes of advertising, business, or of a similar nature”. However, Article 8 of the Organic Law does permit actions in which there is a “predominant and relevant historical, scientific, or cultural interest”.
Of notable interest in Spain are the tax implications that arise with the realm of image rights. In the past, many football clubs have used image rights companies in order to pay players with a lower tax cost, eluding its qualification as employment income. As a result, Spain passed a law in 1996 that sought to limit the amount of income that may be paid by a club to the player as compensation for the image rights assignment. The 85/15 rule limited the amount paid to a player through image rights to only 15% of the total amount that was to be paid.  If the limit was passed, all of the funds paid by the club to the image rights company would be taxed as employment income, rendering the method obsolete. These rules are in place due to the robust nature of Spain’s image rights protections. These laws have implicated the likes of Lionel Messi and Cristiano Ronaldo.
Germany is heralded as the strongest level of protection within Europe. This jurisdiction is covered by various laws protecting the image rights of individuals. Section 12 of the German civil code protects the right to one’s name.
“If the right of a person to use a name is disputed by another person, or if the interest of the person entitled to the name is injured by the unauthorized use of the same name by another person, the person entitled may require the other to remove the infringement. If further infringements are to be feared, the person entitled may seek a prohibitory injunction.
This right is only enforceable if the use of another’s name is likely to cause confusion. It is clear that like other jurisdictions, the tension between freedom of speech and the image right it quite apparent.
Another very interesting component of the image rights discussion is how football associations can provide third parties the image rights for their members. In a highly publicized case from 2003, a Hamburg court ruled that Electronic Arts, the creator of FIFA World CUP 2002 game, could no longer sell the game because it featured then Bayern Munich goalkeeper Oliver Kahn on the cover without his permission. Before making the game, Electronic Arts licensed uses of European footballers through the European football players federation and the German Bundesliga. However, Oliver Kahn did not belong to either organization and never gave permission for his likeness to be used. As a result, FIFA had to compensate Mr. Kahn for their use of his likeness and temporarily stop selling their game. An interesting yet predictable outcome when one understands Germany’s doctrine.
While the rules are robust across the Western world in regard to players’ image rights, personality rights, right of publicity or whatever you may call them, it is clear that they are not homogenous and require further harmonization in order for actors within this arena to adequately predict the consequences of their actions and interpret the legal doctrines. Universal protection is key for entertainers and athletes across the globe, hopefully we will move in that direction.
 Sports – https://www.lexology.com/library/detail.aspx?g=18a78c6e-4ee9-444c-8889-a039583c54a7; Entertainment – https://www.pwc.com/gx/en/industries/tmt/media/outlook.html
 Haelean Laboratories v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953)
 Id. at 869.
 Zacchini v. Scripps Howard Broadcasting Co., 433 U.S. 562 (1977)
 31 COA2d 121(2019)
 Many states can recognize a common law and a statutory right of publicity. The common law elements are 1) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; 2) lack of consent; and resulting injury.
 Restatement of Law, Unfair Competition, § 46.
 Vanna White v. Samsung Electronics America, et al., 971 F. 2d 1395 (9th Cir. 1992);
 Id; See also, Carson v. Here’s Johnny Portable Toilets, Inc., 698 F. 2d 831 (6th Cir. 1983) (finding right of publicity claim based on Johnny Cason’s entrance to the tonight saying “Here’s Johnny”).
 Hart v. Elec. Arts, Inc., 717 F.3d 141, 146 (3d Cir. 2013)
 No Doubt v. Activision Publishing, Inc., 192 Cal.App.4th 1018 (2011)
 Dryer v. National Football League 55 F.Supp.3d 1181 (2014)
 Robyn Rihanna Fenty and others v Arcadia Group Brands Ltd
 Reckitt & Colman Ltd v Borden Inc.,  1 All E.R. 873; Reckitt, sold lemon juice under the name “Jif Lemon” which came in plastic yellow container that was shaped like a lemon. Borden, a competitor, started to produce lemon juice in a similar lemon-shaped plastic container that was only slightly larger with a flattened side. Reckitt sued Borden for passing off their product as Jif Lemon juice.
 Robyn Rihanna Fenty and others v Arcadia Group Brands Ltd
 Elisabeth Logeais & Jean-Baptiste Schroeder, The French Right of Image: An Ambiguous Concept Protecting the Human Persona, 18 Loy La Ent LJ 511, 511 n1 (1998)
 Id. at 513
 Id. at 531
 Mrs. X v SARL Denim (2018); Mr. X v. Umanlife (2018)
 Mrs. X v SARL Denim (2018)
 Mr. X v. Umanlife (2018)
 Stephen R Barnett, The Right to One’s Own Image: Publicity and Privacy Rights in the United States and Spain, 47 Am J Comp L 555, 579-80 (1999).
 Art. 18, Const. Arg
 § 12 Abs. 1 S. 1 BGB.