The Authors' Take - Beauty and the Brand: Drafting contracts for the commercial use of someone's likeness

Beauty and the Brand: Drafting contracts for the commercial use of someone's likeness

by Kelsey Farish

Brands constantly seek to secure and promote their goodwill and reputation in the hearts and minds of the public. The use of individuals – either as models, spokespeople or other brand ambassadors – is often a key part of that process. But what control does the individual model (professional or otherwise) have over a photograph that depicts them? From a copyright perspective, unless the image is a selfie, the answer is usually, “not very much control at all”.

At law, a photograph’s subject is typically not entitled to exploit the image in question without permission from the relevant copyright owner or its licensees. Even in jurisdictions with strong image (personality) rights regimes, the issue of controlling an image by virtue of being depicted in it is rarely straightforward. Such matters often turn on privacy, commercial context, and the unique circumstances of the person’s public profile.

In addition to the legal complexity, the expectations and practical concerns surrounding control over one’s own likeness seem to be shifting. This is due in part to a growing movement amongst content creators, influencers, and other public personas seeking fair recognition and remuneration over how their likeness is exploited. Furthermore, accusations of cultural appropriation and unfair exploitation of models, as well as airbrushing and manipulation more generally, remain hot-button issues in the world of media and advertising.

Thankfully, freedom of contract provides ample opportunity for a photograph’s subject to exert at least some control over how their image is used. That said, it can be difficult to know where to start when seeking to protect the interests of both the individual and the brand.

The author of the forthcoming Practice Point, entitled 'Beauty and the Brand: Drafting contracts for the commercial use of someone's likeness', hopes that this guidance will be useful for those drafting contracts marketing campaigns and influencer agreements, as well as high-profile celebrity endorsements.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]

The Authors' Take - Putting a Face to the Game: The Intellectual Property Implications of Using Celebrity Likenesses in Videogames

Putting a Face to the Game: 
The Intellectual Property Implications of Using
Celebrity Likenesses in Videogames

by Yin Harn Lee

Lecturer in Law, University of Sheffield

Technological advances have allowed videogames to depict individual likenesses with an increasing degree of fidelity. Because of this, it is now not uncommon to see videogame characters bearing the likenesses of well-known celebrities. Often, this will be the outcome of a licensing arrangement between the videogame developer and the celebrity concerned. Disputes may arise, however, where a videogame developer chooses to recreate the likeness of a celebrity in its videogame without first securing the latter’s consent.

In various US states, the outcome of these disputes would be determined under the law relating to the ‘right of publicity’, which gives individuals the right to control the commercial exploitation of their name, image, voice, and other aspects of their identity; in a number of continental European jurisdictions, similar disputes would be decided under the law relating to the individual’s ‘right of personality’. The UK, however, has no equivalent legal framework. Disputes relating to the unauthorised use of a celebrity’s likeness in a videogame will therefore have to be determined under a range of different intellectual property regimes, in particular copyright law, the law of passing off, and trade mark law.

This article [which will be published as Advance Access here in a few weeks' time, and will be included in one of the next issues of JIPLP] will show that, while the unauthorised recreation of a celebrity likeness in a videogame is unlikely to amount to copyright infringement, the position may well be very different under the law of passing off and trade mark law. This is due to the expansion of the ambit of each of these regimes over the course of the last few decades. In recent cases, the courts have become increasingly willing to recognise that the likeness of a celebrity is capable of functioning as an indicator of origin and, as a corollary, to accept the possibility that the unauthorised use of such a likeness on a product may mislead or confuse the public into believing that the product was authorised or endorsed by the celebrity concerned. While the unauthorised use of a celebrity likeness in a videogame might appear to be far removed from the paradigmatic case of passing off or trade mark infringement, therefore, the applicability of these two regimes to such a scenario can no longer be dismissed out of hand.


[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).]