Topshop, a long established UK high street chain retailing women’s clothing, has been successfully sued by pop star Rihanna (Robyn Rihanna Fenty) for passing off. Topshop sold over 10,000 t-shirts bearing Rihanna’s face prominently on the front. The facial image of Rihanna adorning the t-shirts came from a digital photograph taken during filming of a pop video in Belfast to promote Rihanna’s ‘We Found Love’ song from her 2011 hit album ‘Talk That Talk’.
Although Topshop had permission from the photographer to use the image, and hence no copyright infringement issues, the UK court determined that use of the image on the t-shirts amounted to passing off. That is, consumers would be lead to believe that the t-shirts were endorsed by Rihanna.
There is no specific UK law protecting image rights for celebrities. Hence, Rihanna had to rely on the law of ‘passing off’. This requires that the artist prove they have a reputation and that customers would be confused into believing that use of the image is endorsed by the artist. Finally, the artist has to show that they suffered some form of damage as a result of the ‘passing off’.
Mr Justice Birss of the UK England and Wales High Court considered Topshop’s reputation in the market as a leading high street clothing retailer and the fact that Topshop had previously (legitimately) used images of celebrities on clothing, as well as Rihanna’s reputation as a likely fashion trendsetter and that the image was taken during shooting of the music video, to conclude that consumers would believe that Rihanna endorsed the t-shirts. Tweets from Topshop staff that Rihanna had visited or shopped in Topshop did not help Topshop’s case.
The judge, Mr Justice Birss, concluded the case by stating that “The mere sale by a trader of a t-shirt bearing an image of a famous person is not, without more, an act of passing off. However the sale of this image of this person on this garment by this shop in these circumstances is a different matter. I find that Topshop’s sale of this Rihanna t-shirt without her approval was an act of passing off. I find for the claimants.”
Following this case, other celebrities may be encouraged to take legal action for unauthorised use of their images on products. However, not every case of use of an image of a celebrity on a product unauthorised by the celebrity will result in passing off. Each case relies on its own circumstances.
Details of the case decision ‘Fenty & Ors v Arcadia Group Brands Ltd (t/a Topshop) & Anor  EWHC 2310 (Ch) (31 July 2013)’ can be found at www.bailii.org.