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Image Right Infringement

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With Image Rights as with any other law it is vital to know what is classed as "Infringement" and what is permissible.

Protecting an Image from Infringement

A registered personality’s image rights are infringed by the non-authorised use for commercial or financial purposes of an image which is:

  • Identical or similar to a registered image and because of that there exists a likelihood of confusion by the public including the likelihood of association with the registered personality.

  • Identical or similar to a registered image where the use of the image, without due cause, takes unfair advantage of the distinctive character or repute of the personnage, or is detrimental to the distinctive character or repute of it, or to the value of that registered personality or that registered personality’s images.

The infringing use of an image includes using it in a communication to the public, sponsorship, marketing, affixing it to packaging and including the use of an image within a domain name (in this instance the image would be the personality’s name).

Only a distinctive image can be infringed but any registered image is presumed to be distinctive, (although this presumption is rebuttable).

The Defences

Not all unauthorised use of a registered image can be considered an infringement.  Any use of a registered image in the following circumstances is permissible:

  • comparative advertising (subject to honest practices).

  • incidental inclusion.

  • descriptive use.

  • acts done privately.

  • use for the purposes of identification of goods/services as those of a personality.

  • fair dealing for the purpose of current news reporting, commentary and satire.

  • Research.

  • fair dealing for other purposes not affecting the legitimate interests of the personality.

  • education.

  • public administration.

  • temporary copying.

There is no infringement by the making of transient copies of a registered image. There are thus potential safe harbour provisions for internet service providers where the use has no independent economic significance. 

Remedies for Infringement

Infringement entitles the proprietor a registered right to injunctive relief, damages, an account, delivery up (within 6 years of the date of infringement) and an order for disposal.  Innocent infringers are immune from an account or a damages award.  Damages may increase based upon numerous factors including the economic consequences of infringement, flagrancy and any unjustified benefit to a defendant.

One interesting use of the Ordinance is its potential to assist in the taking down of website images that a personnage wishes to have removed from public view once they no longer remain part of current news.  Assuming that the image right of the person has been infringed then a Guernsey Court may order the removal of the infringing image, an order enforceable in the United Kingdom.

Conclusion 

The Guernsey Image Rights Register offers the unique ability to register image rights in a politically stable and tax neutral jurisdiction that has drafted specific legislation for that purpose, and to protect them from unauthorised use.  This allows any individual, group or company to have their valuable images registered indefinitely and to benefit from:

  • Creation of a “property right” which can be traded.
  • Legal proof and certainty of who owns the rights to use a particular image for licensing. and endorsement agreements.
  • Legal protection of the image.
  • Legal ownership of a personality’s image can continue to exist after their death allowing for long-term estate and inheritance planning.
  • The ability to have old unwanted images taken off the internet.

 Very clearly Guernsey has introduced a world’s first for celebrity management. 

For more information on Image Right Infringement, please contact our Team.


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