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Topshop Intellectual Property Copyright

Understanding the legal ramifications of Rihanna vs. Topshop

By Mark Leiser, Research Fellow

August 2, 2013 | 4 min read

Chart sensation Rihanna won a lawsuit against Topshop this week, this is the first time that a passing off case has been successfully argued after an image appeared on an item of clothing.

This week pop star Rihanna won a lawsuit in the United Kingdom (this is important) against popular fashion chain Topshop after claiming that the retail store had used an unflattering image of her on one of their t-shirts. The offending image can be seen here. Topshop had offered to settle for $5,000; Rihanna had claimed more than £3.5m in damages. Although the picture on the Topshop t-shirt was of her face was used, she was unable to claim any image royalties. She is also particularly upset because the image is very unflattering and the quality of the t-shirts is "poor" stating that "The base image of the first claimant [Rihanna] is of such an unflattering nature that it would not be approved."Thanks to a loop in the copyright law in the United Kingdom, the photographer owns the copyright, not Rihanna. Rihanna isn't the owner of the image or copyright in it. The UK, furthermore, does not have strict right of publicity laws like the United States. In other words, Topshop could sell the t-shirts in the UK because there has been little protection of the commercial value of one's persona in England. If the t-shirt was sold in the United States, the outcome of this lawsuit would likely be the same, but under different legal principles. Unlike the United Kingdom, the law in the United States allows celebrities to enjoy strong property rights in their persona and image. This has become an increasingly cloudy area of law with advances in new digital media. Rock band No Doubt won a lawsuit against Activision when it alleged an infringement of their right of publicity in the popular Rock Band video game. The game allowed users to unlock features and manipulate the No Doubt avatars to perform songs not approved by the band. Had the lawsuit been filed in the US, Rihanna’s lawsuit would have been a no-brainer, but the t-Shirt had only been sold in the UK, where these image rights don't exist.
To get around this jurisdictional problem, Rihanna had to take a different approach and argue around image rights and copyright. Rihanna's lawyers argued that TopShop had misled customers into thinking that Rihanna had endorsed the use of her image on the T-shirt, leading to consumer confusion damaging her reputation. This is exactly how Justice Birss ruled in this case. Rihanna successfully argued and influenced the judge into thinking that fans would have been duped into buying the shirt on the basis that she had endorsed it. To do this, she argued that Topshop was ‘passing off’ and gaining a commercial benefit from a false belief that the celebrity had endorsed the image appearing on the t-Shirt causing her damages. This “classic trinity” needs to be proven in each passing off case. It is not to be considered that a foregone conclusion that every time an image appears on a piece of clothing that it would be passing off. This case applies traditional concepts of passing off to the world of celebrity endorsement. The judge was quite clear that this was not a case of “image rights”, since those are not recognised in the UK."Firstly, the image showed Rihanna wearing the same clothes that she wore in the video for her 'We Found Love' single. Secondly, the fact that it was Topshop, which has a reputation for associating fashion with celebrities, meant that there was more likely to be confusion than if the T-shirt had been sold in a different type of outlet." Indeed, Birss said that Rihanna’s image being used by Topshop, "amounts to sales lost to her [Rihanna's] merchandising business. It also represents a loss of control over her reputation in the fashion sphere."This is the first time a celebrity has won a passing off case relating to their image on an item of clothing. Both ABBA and Eddie Irvine failed to get passing off injunctions in the past. Not surprisingly, Topshop announced it plans to appeal, arguing that the star was attempting to assert image rights, which are in contrast to US law, not recognized in the UK. The judgement can be read in its entirety here.
Topshop Intellectual Property Copyright

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