By Pete Konieczko-Hansom, Head of Intellectual Property Law at Blacks Solicitors
It’s crucial that athletes and their agents are aware of their image rights, how they can be used and what needs to be done to protect them effectively. In the following article, we share some insights to help ensure that athletes are effectively protecting their image rights.
What are image rights?
The term image rights refers to an individual’s proprietary right in their personality. This means that they have the right to prevent unauthorised use of their name, likeness or other personal associations, such as physical or style characteristics, signatures, nicknames or slogans.
Image rights also encompass relevant registered or unregistered UK and foreign copyrights, trademarks or design rights, which exist either now or in the future.
What does UK legislation say?
Unlike some jurisdictions, such as countries in the EU, the UK does not have a specific law recognising image rights as a standalone legal concept. France and Germany, for example, have defined laws, while Guernsey recently introduced a comprehensive system for registering image rights. Over 30 states in the USA also have some image or publicity rights.
These inconsistencies can impact the protection of image and personality rights. It’s therefore key that athletes and their agents establish the nature of the rights and relevant jurisdiction, particularly in relation to non-UK image rights.
The protection of image rights in the UK is a growing area. In a culture that could often be classed as highly interested in celebrities, including well known athletes such as Premier League footballers, the development of the law in this particular area is highly likely. It won’t be a surprise if the law is driven forward by athletes, particularly those who are eager to prevent third parties using their image without licence.
The possibility of applying for a trademark is available if there is a good case to do so, but case law and the facts should be carefully considered by the athlete and their agent before progressing down this route.
Data protection and privacy laws
Image and personality rights are often addressed through, and fall under data protection and privacy laws. This includes the General Data Protection Regulation (GDPR) and the Data Protection Act 2018. The aim of the GDPR and Data Protection Act is to protect the fundamental rights and freedoms of individuals related to the protection of their personal data and its processing1. This extends to image and personality rights across all sectors, including in sports.
It’s important that athletes and agents are aware that personal data includes images and that they have rights over any images that are captured that could lead to the identification of the individual in question. GDPR breaches may result if the images are not managed correctly. This extends to securing consent when the images of an athlete are stored or processed, and the data controller should be able to demonstrate that consent has been given when processing personal data.
Under the GDPR, an athlete can also withdraw their consent and request that any images or other personal data are unpublished and deleted with immediate effect.
Consent and privacy
This generally extends to the understanding that any individual, including well known athletes, will have a reasonable expectation when it comes to their privacy. Capturing or using someone’s image without their consent may infringe on their privacy rights although it’s beneficial to be aware that public figures, such as athletes, may have a reduced expectation of privacy compared to private individuals.
However, given the data protection and privacy laws that we’ve touched on, athletes and other well-known figures have the right to choose where and when their image or likeness can be used. This means that if there is sufficient demand for their image, it can be commercialised.
Commercial use and endorsements
Athletes can, in the right circumstances, monetise their image through endorsements and advertising which can of course provide a lucrative income if managed correctly. However, due to the reliance on data legislation to protect image rights, failure to obtain an individual’s consent can make commercial use unauthorised and could lead to severe legal consequences.
It’s therefore important that athletes and their agents keep an open dialogue when negotiating endorsements and advertising opportunities so that the individual feels comfortable and is happy for their image to be used commercially. This will help to avoid lengthy legal proceedings later down the line if permission is rescinded.
Getting contracts right
This also comes down to third parties who want to use the image of an athlete in their advertising. They must secure consent from the athlete, either directly or through their agent, to ensure that the images can be used as required.
For athletes, they should remember that they retain control over how their image is used and ensure that there are no negative consequences of any endorsements or adverts that use their image.
If you require support on image rights, please contact the Intellectual Property law team via the website: www.lawblacks.com/business/intellectual-property-law/.
