In the UK, the law does not specifically recognise image rights. The absence of any specific relevant law in the UK has led lawyers to seek to protect celebrities' image rights by trying to construct arguments based on intellectual property laws, such as trademark infringement, passing off, breach of advertising regulations and copyright infringement, often with very little success. Until recently the UK legal position appeared to be the complete opposite of the position in many important overseas markets, where image rights of sportsmen and entertainers are generally very well protected.

Celebrities and sports stars including Muhammad Ali and Tiger Woods in the USA, Franz Beckenbauer in Germany, Linda Evangelista in France and Walter Zenga in Spain have all successfully sued for unauthorised commercial uses of their names and images. Andre Agassi is currently suing Rolex in the courts of Nevada for misuse of his image in an advert.

Definition

This is a developing area of law, which can be broadly understood by reference to what rights rest in a person (normally famous) to exploit the rights that arise from their own image or personality. It is, to some extent, founded
in copyright and trademark but generally arises out the generally arises out of the imposition of a contractual obligation or reservation to the person involved of certain rights that stem from the use of that person’s name or image.
For example, the way David Beckham has enhanced his salary in his contract by effectively drawing additional income out of his contract because of the perceived enhancement to Manchester United of his association with their products and services.

Closely aligned to this development in the law are attempts by stars to use the law of privacy to restrict third party intrusions into what might be generally described as their image rights. The difference between image rights and the other Intellectual Property rights described above are best illustrated by the case involving the Elvis Presley trademark (1999) RPC 567, where part of the Judgement says as follows:
“It would not be accepted without evidence that the marks “Elvis” or “Elvis Presley” would denote anyone a connection with Enterprises (i.e. the company which had since his death carried on the sale of products bearing his name) and Elvis products so as to distinguish its products from the opponent’s products (that is the opponent to the trademark).

In the field of memorabilia bearing the name or likeness of a famous figure, it must be for that person to ensure by whatever means might be open to him or her, that the public associated his or her name with the source of goods. There should be no a prior assumption that only a celebrity or his successor could ever market (or license the marketing of) his own character”.
The point of trademark is that it is a badge of origin of the source of the services of goods and associated in the course of the trade concerned with the goods in question e.g. Levi Jeans belong to Levi and originate there from. Coca- Cola is made and produced by the Coca-Cola corporation.
The fact that something has the name “Elvis”, “Cliff” or “Beckham” on it, does not mean that Beckham, Elvis or Cliff are the originator and source of the goods. It merely means it is an endorsement.

For these reasons, image rights are best protected in a contractual sense with a restriction of the right of others to exploit trademark or copyright. On the other hand, various other common law rights such as passing off may apply, if names, photographs etc are used without permission and cause confusion as to origin. This is particularly important if “authorised” goods are on the market for the same type of product.

Image Rights as Trademarks or Brands

The 1990s saw an explosive growth in the value of brands, the general understanding of how brands worked, and why they were valuable, increased. It became obvious that the great part of the difference in value between Heinz beans and supermarket own-brand beans was attributable to the Heinz trade marks (and everything they stood for). Consumers knew that the own-brand products were often being produced by the owners of the valuable trade marks, yet still the consumers tended to choose the branded goods. Thus, the value of the trade marks became crystal clear - in the case of Heinz, say 10p per can. In parallel with the growth in these established brands, the value of individuals as brands similarly became clearer.

While the linking of a celebrity and a product is more subtle than the linking of a trade mark and a product, the effect is the same: the seller can charge more money than a competitor could for a similar product which doesn't have the benefit of the celebrity endorsement/trade mark.

Celebrity endorsement has an added appeal: it is an instant fix, as opposed to building reputation in a trade mark organically. Further, the celebrity and the trade mark can become one:
David Beckham has applied for a Community Trade Mark for his own name, covering a wide range of goods and services including hair products.

Image rights as protected intellectual property
The simplest way of understanding the nebulous concept of image rights is to break it down into its constituent elements

Contractual rights/intellectual property rights

Every player or athlete has a name (Eric Cantona), facial and other physical or style characteristics and a signature (bushy eyebrows, unshaven appearance, raised collar, runs with a straight back). Players sometimes also have nicknames logos and associated slogans or even catch phrases.They also have biographical information and statistical data. All of these elements can be referred to as "player indicia".

Every player or athlete has the ability proactively to lend his support to a commercial entity, whether a sponsor (Nike), an advertiser (Eurostar), a club (Manchester United) or a federation and, as part of such an arrangement, to lend (or licence) the use of various player indicia. The licensee involved then has the contractual right to use such indicia - a contractual "image right". If this contractual image right is exclusive to the licensee, the player will not be able to licence the same rights elsewhere, depending on the terms of the contract.

However, if a third party (a pirate merchandiser or a rival sponsor) uses any of the licensed player indicia without the player's consent, what the player or the authorised licensee can do anything about it depends on whether the courts in the jurisdiction concerned recognise any legal right in the player indicia, under intellectual property, advertising, privacy laws.

In the UK, the law does not specifically recognise image rights.
Strictly speaking, therefore, there is no such thing in the UK as a personality right per se. The debate about image rights is really about the value and control of contractual image rights - the ability of a club to secure an exclusive contractual right from its players to exploit their player indicia in various ways.

Passing off

However, the law in the UK does provide a degree of protection for player indicia. The law of passing off can prevent a celebrity's image being used overtly to promote a commercial product. There is little case law involving the application of passing off to the unauthorised commercial use of the images of real persons. And what does exist was, until very recently, generally unhelpful from the player's perspective. However, the recent victory by racing driver Eddie Irvine in his case against TalkSport has confirmed that the English courts do now consider celebrity sportspeople to have commercial reputations that should be protected under passing off.

The Irvine case is to be welcomed on 3 fronts.
Firstly, it acknowledges that personality rights are valuable, in much the same way as any other brand. The judge noted that as retailers were willing to pay for celebrity endorsements, the law should recognise that the celebrities' rights are valuable.
Secondly, it allows individuals much more control over how these rights are exploited, as they are now given the legal tools to protect their reputations from false endorsements.
Thirdly, it brings the UK law in this area into line with the law in other countries.

Trademarks

It is also possible in certain circumstances to register player indicia as trademarks, domain names and internet keywords. Registering nicknames and logos as trademarks is likely to be easier than registering names.
David Beckham, for example, has filed a community trademark application in a range of classes covering products such as sunglasses, bags, football shirts and, somewhat paradoxically, hair lotions.
The extent to which such trademark rights are practically enforceable is debatable. It is uncertain, for example, whether a player who has registered his name as a trademark in the UK could prevent it being used not just on the cover of a product such as a computer game, but on the inside of the game itself.
Further problems might arise if the use of the name in question was merely as one of a large number of names - the product manufacturer would no doubt argue the names were being used in a descriptive rather than a trademark sense.

But a celebrity whose name is being exploited without consent does have other rules of law - libel, trade descriptions legislation, advertising codes - to call upon. The human rights convention, which contains a right of privacy, could even be invoked to protect personality or image misuse.

A recent ruling by the inland revenue special commissioners in the Arsenal/Denis Bergkamp case, acknowledged, for tax purposes at least, that image rights could effectively be capital assets, notwithstanding that English law does not specifically recognise that such rights exist. But the real issue here is not so much what the law does - or does not - say on the subject, but what the market says.

Markets

Clubs want to maximise their assets to please their shareholders. These assets include the brands and images of their players. To control these assets they need to contractually acknowledge their existence.
The more contractual image rights deals that take place, the greater the acknowledgement in the market - and, potentially, in the courts - that they exist and have a value. Legitimate commercial operators will increasingly want to ensure that where such rights exist, they are cleared.

Assuming that image rights do become a species of intellectual property, whether in law or in practice, one of the key practical questions will concern the precise circumstances in which such rights may be infringed

To a great extent, celebrity names and images are, by their very nature, in the public domain. It is what makes stars famous and therefore valuable. It is also why publishers of newspapers and magazines, CD-Roms and internet sites wish to use such names and report on their activities. It is unlikely that purely editorial or educational uses of sports star images would fall foul of image rights law. But questions involving editorial usage do occur.

Does editorial information include use of an image on the front cover of a magazine? It may be editorial but it is also selling a commercial product.
Similarly, does use of player names and statistics within a newspaper or online fantasy game constitute "informational" or commercial use?
This dividing line is critical in many commercial applications.

If image rights exist as tangible assets, can a player licence or assign them exclusively to a club, transfer to another club and then be prevented by the first club from participating in the commercial activities of the second club?
One would imagine this would constitute an unfair restraint of trade and, therefore, be unenforceable. But this kind of issue has yet to be tested. If there is a risk that a player can jump ship and take his image rights with him, how can the club be compensated for its wasted investment?
If recognition that image rights exist continues to increase, the position of the federations, leagues and clubs for whom the players perform will come into sharper focus.

To what extent do such bodies currently address the issue to ensure their own commercial programmes can incorporate player names and images without risking a writ?
Many events deal with the issue under their terms and conditions of participation in an event. Wimbledon football club, for example, obtains the right from all players for the use of their name, voice, likeness and biographical information - for the purpose of promoting the tournament - and the right to require players to participate in reasonable promotional activities for the tournament. This type of provision is reasonably standard but appears unlikely to allow the event organiser to use or authorise third parties to use players' names in connection with event based products, such as video games, or with event sponsors' activities.

Even the standard FA Premier League player contract makes precious little reference to the subject of image rights. Specific arrangements with particular players are usually dealt with by way of an addendum to the standard contract, negotiated on a case by case basis.

There is no doubt image rights are here to stay. The precise scope and effect of such rights remains to be determined but the underlying trend towards a proprietary right in a personality will remain. Image rights will become a permanent part of the sports marketing spectrum, alongside TV rights, sponsorship rights and merchandising rights.