Academic journal article The International Sports Law Journal

The Island of Guernsey to Introduce New IP Image Right

Academic journal article The International Sports Law Journal

The Island of Guernsey to Introduce New IP Image Right

Article excerpt

The commercialisation of the image rights of sports personalities, such as Tiger Woods and David Beckham, are big business for the sports persons themselves and those who wish to be commercially associated with them to promote their goods and services. However, the legal protection of sports image rights varies around the world. On the subject of sports image rights generally, see 'Sports Image Rights in Europe' edited by Ian S Blackshaw & Robert C R Siekmann, 2005, The TMC Asser Press, The Hague (ISBN 90-6704-195-5).

In the United States, generally speaking, these rights are legally recognised and protected as so-called 'rights to publicity' - in 28 out of the 50 States, including, not surprisingly, California, the home of celebrities.

In Continental Europe, known as 'personality rights', these rights are protected under special provisions in the written Constitutions or special Legislation of the countries concerned. For example, in Germany, articles 1 & 2 of the German Constitution protect image rights (see the case of Kahn v Electronic Arts GmbH, 25 April, 2003, in which the image rights of Oliver Khan, the former German national team goalkeeper were protected against commercial use without his consent). And, in France, article 9 of the French Civil Code confers a general right of privacy on individuals as part of a package of rights protecting the person.

On the other hand, in the UK, there is no such thing, legally speaking, as an image right per se. Image rights are only legally protected, if the reproduction or use of a person's likeness "results in the infringement of some recognised legal right which he/she does own" (per Mr Justice Laddie in Elvis Presley Trade Marks [1997] RPC at p 549). An example of such a right would be a registered trademark. For example, a sports personality may have registered his nickname as a trademark, as in the case of the Paul Gascoigne, the English footballer, who is widely known as 'Gazza'.

However, in the UK, image rights are recognised for tax purposes. See the UK case of Sports Club plc v Inspector of Taxes [2000] STC (SCD) 443, in which Arsenal Football Club succeeded in having payments made to off-shore companies in respect of the Club's commercial exploitation of the image rights of their players, David Platt and Dennis Bergkamp, classified, for tax purposes, as capital sums and, therefore, non-taxable as income. …

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