Intellectual Property Rights in the UK - Essay Example

INTELLECTUAL PROPERTY RIGHTS IN UK By: + ‘Celebritatem’ is the Latin word that is translated into ‘celebrity’ and simply means someone who is famous. Public figures such as musicians, actors, radio personalities and other individuals whose works are widely known and appreciated are some of the people seen and termed as celebrities. Subsequently, their statuses in the society are protected through intellectual, publicity and copyright laws depending on their respective areas. Any illegal use of their work normally results in a legal suit that tends to end in compensation to the celebrities. However, there have been arguments recently in the UK on the effectiveness of these laws. While some feel the current laws are sufficient, others contend that there is need to reform them in a bid to offer more protection of these rights. This paper seeks assert that the current laws in these areas are not sufficient, and that it is imperative for them to be reformed to assure respective individuals more protection of their rights. The United Kingdom and Personality Rights Publicity right which is often termed as personality rights refers to an individual’s right to have control over the use of their images, names and likeness commercially. Using a celebrity’s image, identify or mimicking their styles may be viewed as an infringement on their rights, and subsequently lead to a legal tussle. Usually, personality rights are categorized into two including the right to privacy and the right of publicity which prohibits the use of a person’s image, identity or likeness in a commercial way without their direct consent or compensation1. Analysis of the publicity laws Imitating or creating a parody of a celebrity may be viewed as an infringement of their rights, and this often leads to a court case2. A perfect example involves a polar American singer, Lindsay Lohan and a financial firm, E-trade where the latter is accused of creating a parody of Lindsay Lohan. While the firm argues that they used the name ‘Lindsay’ as a male name, the former vehemently argues that since many celebrities are known by one name, the firm was trying to exploit the singer’s name. In this scenario, the law states that there should be no use or creating an impression of another person’s identity without their consent. On the other hand, the complainant has to comprehensively prove that there is this usage3. In a scenario like this, the singer may end up losing the case because of a number of issues one of which is insufficient proof that the firm. While the firm may have used the name ‘Lindsay’, the law’s requirement may see the company get away with it. The reason for this argument is that the firm could argue it used a male name, a male character whereas Lindsay is a female. In fact, the company has already claimed that it never used the name Lindsay as a way of imitating the singer. When such cases are rampant, the publicity rights of many celebrities are hardly upheld because there is a deficiency on the side of the law4. These cases especially in the UK tend to have a very unpredictable ending mainly because of a lack of clarity on publicity rights. The case involving singer Rihanna against Acardia group was an interesting one. In the case, the singer sued Topshop stores which had the singer’s photo on the front side. Apparently, the store had been granted the right to use the image by the photographer who first took the photo as the latter had the copyright for the same. However, the singer contested that by passing off the photograph, it would appear that the singer endorsed the purchase of such outfit. Even though, the singer eventually won the court battle, it was not because of image right. Rather, it was because Rihanna relied on Passing off because the English laws seldom recognise these rights as evidenced by the Douglas V Hello Ltd in 2007. When the laws appear to create a loophole, even business owners suffer because unfair competition is not well addressed. It has been noted that some countries, particularly the UK, the laws are not as restrictive as they ought to be5. Consequently, this leads to other entities indirectly infringing on others’ work. While this may not mount to direct infringement, without strict rules, some people can engage in activities that give them an advantage over their rivals without repercussions because the law is somewhat silent on the issue. For that reason, it is imperative that laws be changed to ensure that any slight infringement is punishable. This way, it will not only benefit the owner of the rights, but also other businesses or individuals since there will be a fair playground. In addition to having the recommended adjustments, it is important to fast track the process of the cases. Apparently, in the UK, “enforcing intellectual property rights against infringers can be time-consuming and expensive”6.  As a result, one may end up spending a lot of money while the case is proceeding, and eventually, even the compensation may not be sufficient. Therefore, there is a need to have the laws on these areas amended to ensure that the people whose rights are infringed upon do not find it cumbersome to get justice. Because Intellectual property (IP) laws are territorial, it sometimes proves to be pretty hard to get justice when one’s rights are infringed upon outside their country. While it is factual to state that a majority of countries have similar laws, the legal process coupled with the advancement of the judiciary system is not uniform worldwide. In other words, there is a likelihood of some cases either getting compromised overseas or taking even longer time than they do in the UK. To remedy this situation, there is need for cooperation from all countries. Additionally, IP laws tends to apply only in the countries where they are registered meaning they can be duplicated elsewhere with minimal or no consequences. With IP laws, seeming to be relaxed or less effective, owners of these rights may end up forsaking any legal process to be compensated. Nonetheless, with several countries forming trade blocks, these ought to be included in these agreements to guarantee individuals and business owners of their rights. A case in point is the EU regulations, which strictly prohibit infringement with offenders facing punitive measures7. To ensure that all individuals are protected, this ought to be embraced worldwide lest these people suffer emotional and privacy-related loss. The right to privacy is essential to any celebrity, and any intrusion on this part can potentially cause even mental anguish. While publicity rights are not to be infringed either, infringing upon the right to privacy for the celebrities is causes more anguish than the former8. For instance, using a private photo of a celebrity is likely to cause more anguish because it will be presented in the public unlike the other photo, which may not cause as much pain as the other one. Yet, these are some of the cases that tend to occur often with the litigation process taking a little longer than the affected party would wish. One case that attracted attention was held in the UK in 2004 involving a celebrity, Naomi Campbell to be precise, against one of the leading newspapers, The Mirror. The newspaper had used the model’s picture that showed her leaving drug addiction treatment in 2001.When the case went to the Appeal court; the model was ordered to cover the newspaper’s legal fees. However, after a three-year legal battle, the Law Lords overturned the ruling in the favour of the celebrity, and a damages compensation of £3,500 was awarded9. The interesting trend in this case explains the need to have laws amended to ensure that swift justice is made possible, and that there are no different interpretations of the same. For instance, in this case, the first time the legal process started, the High court awarded Naomi Campbell £3,500, which the Court of Appeal overturned. In fact, the Court of Appeal had ordered the model to pay the newspaper the legal fees, which amounted to £350,000. This difference in the understanding or interpreting the law means that it is not yet clear on the process that ought to be followed in such cases. Consequently, this could be calamitous to the affected persons because had the Law Lords ruled in the favour of the newspaper, the Campbell’s rights would have been infringed upon. This case proved a number of issues about the complexity interpretation of privacy laws in the UK as evidenced by the different rulings. As a matter of fact, even the Law Lords’ ruling was not unanimous; it was a three-to-two ruling implying other judges felt otherwise about the case. Evidently, the issues touching on the celebrities’ right to privacy need urgent scrutiny and change lest these public figures suffer in vain. This assertion is in reference to this and other cases that have been filed in the past in the UK. During this case, the lawyer representing the media house made very emotional yet valid remarks. Apparently, the British privacy laws” remain incredibly confused”. Secondly, this case proved that the time spent on such issues tend to take too long because of the tendency for appeals. Earlier, it was stated that the process takes too long to complete, and this has financial implications. Clearly, this case has underlined this position as the case started in 2001 but did not complete until 2004. Had the laws been more effective, this case and others would not have so sluggishly expensive. Thus, unless these publicity laws are changed, especially in the UK, the situation may see some celebrities give up on their rights. This decision would see individuals who have not invested in the talent or creativity exhibited by celebrities benefit greatly. The phenomenon of Celebrity merchandising celebrity merchandising is a phenomenon that has been practised in a tremendous version in the 21st century more than ever before. Individuals who are popular in the society are used in the advertisement of products and services, in a bid to influence prospects. Using a celebrity’s picture on a product without their permission is perceived to be against the law. The argument is that by having their picture on a product, the impression created is that the celebrity has endorsed. While it is often argued that having a celebrity’s picture on a product does not guarantee a sale, it is worth understanding that the current society seems obsessed with their favourite celebrities. It has been noted public figures do indeed have an impact when it comes to a buying decision by consumers10. Tort of Passing Off and defamation In law, a tort refers to a wrong that is of civil nature caused unfairly to another person. The action often results in a court case where the plaintiff has to prove that the actions by the accused person can be legally recognized as the reason the victim suffered. The person who suffers from the actions or lack of the same is normally awarded damages, but only upon proving the cause was directly as a result of the accused person. Negligence is one of the causes of torts whereby the suing person has to prove that the harm was caused by the omission of a certain duty by the responsible person. The UK has evolved tremendously in this area especially after the case of Donoghue v Stevenson where the latter was sued for negligence after the former claimed to have fallen ill after drinking from a bottle provided by Donoghue11. In the proceeding case, the jury decided that there was need to satisfy a case on negligence before claiming damages. Later, the laws were changed to include that anyone suing for negligence had to prove that it was tortfeasor’s duty to provide some services, for instance a case of doctor and patient. Secondly, the plaintiff had to prove that the tortfeasor’s action or inaction directly caused the harm12.Proximate, intentional and statutory are other basis on which one can pursue a legal case, but in all, sufficient evidence is needed as much as it is in other cases. When it comes to the tort of passing off, it is normally applied in the world of business where one aggrieved party may sue another for misrepresentation13. Normally this misrepresentation occurs when a party jeopardizes the goodwill of another where the goods belonging to a party as passed off or implied to belong to another’s. It could be a result of imitated slogans, packaging, names or even advertising trend. The suing party has to sufficiently prove that the actions of the accused party mount to misrepresentation, and that the public could be misled by the impression created by the other party. Sadly, when it comes to the UK laws, they are not specific on this particular issue especially because there are not parameters for determining the goodwill of another firm14. When it comes to defamation laws in the UK, there have been recent changes on the laws with the parliament amending them in 2013. In this Defamation Act 2013, it is now a requirement that plaintiffs seeking compensation as a result of defamation have to show the precise harm. Additionally, when it comes to financial companies, concrete evidence showing that there was financial loss is compulsory. Concerning this law, there is no need for further changes because this act comprehensively addressed all issues. Unlike in the past when the even freedom of speech was seen as defamation, this law sought to protect various groups of professionals including scientists and academicians15. There is, however, a difference between defamation and tort law with the former being more serious than the latter. Defamation tends to protect one’s reputation or a good entity against false or derogatory communications. Defamation is then categorised into two parts with slander and libels being the two. Libel often occurs when there are writings that are either misleading or ones that could damage a person’s entity. On the other hand, slander is often committed where oral statements are involved 16. In comparison to the tort law, defamation-related cases are weightier in the sense that they are hardly accidental. Copy right and breach of confidence Copyright is one of the intellectual properties, and is protected by the law with offenders facing various charges. Intellectual property refers to the inventions originating from a person’ or people’s minds, for instance, artistic works, literary work, images and names that are used in the commerce. Normally, two categories define intellectual property including industrial and copyright properties. Trademarks, patents and designs are classified as industrial properties16. On the other hand, copyright property entails works such as novels, names of a product or service books to name but a few. The law seeks to protect such rights and it is not limited to the celebrities17. That is to say, irrespective of one’s celebrity status, any work can be protected through this category. Breach of confidence is a law that allows a person whose confidentiality has been breached to seek legal redress. When information termed as confidential is revealed in a way that would cause anguish to the relevant person, the aggrieved person can civil claim in a court of law18. However, in the UK, this can only be present if at least three components are evident. First, the information purported to have been released must be termed as confidential. That is to say, a degree of confidence is needed to prove that indeed it was confidential. Secondly, evidence is required to prove that the person who released the information did so without the owner’s authorisation. In addition, this disclosure must be proved that it will cause damage. Thirdly, the person in the custody of this information was obligated to keep it confidential always19. Trademark Trademarks are unique logos, symbols, words, phrases, designs, names, shape, sound, signature or even images used by individuals, companies and groups to make themselves outstanding and avoid confusion. As noted earlier, trademarks are seen as intellectual properties, and owners have a right to defend theirs in case of infringement by others20. To successfully win a case against trademark infringement, one ought to have registered their trademark. While one can still successfully challenge the infringement of an unregistered trademark, there has to be enough evidence to show that it has been used before, and thus acquired distinctiveness21. Mostly, in case where trademark is unregistered, passing off is relied upon whereby analysis is done to ascertain if there is confusion in differentiating the goods. The trademarks in the UK require one to have a name that is unique and not descriptive unless it has acquired a significant distinctiveness locally. The registration of trademarks in the UK takes around nine months, but could take longer in some instances especially when there are contestations by other firms. Similarly, the UK Intellectual Property Office (UKIPO) could also object a trademark registration is it does not meet the requirements22. Recently, there have drastic changes in the laws whereby the strictness has been relaxed to fast track the process. Prior to these changes, the registration required one to prove total distinctiveness as well as prior right of a trademark. However, the 2008 altering changed these requirements, and traders find the process less tedious23. UK is indeed changing Earlier in the case involving Naomi Campbell and the Mirror, it was reported that the latter’s lawyer contested that the UK’s personality laws were incredibly hopeless implying that one could exactly know when they are just. While this might be, to an extent, be true, the case involving Irvine and Talksport Ltd proved that the country is headed for a change. In this case, Edmund Irvine argued that Talksport Ltd used the Formula One driver’s image to imply the endorsement of the radio. In the end, Irvine won the case, and this seems to have set a new dawn in the UK for personality rights24. In the ruling, the judge stated that the UK celebrity had, “a property right in his goodwill which he can protect from unlicensed appropriation consisting of a false claim or suggestion of endorsement of a third partys goods or business25." Conclusion Clearly, a majority of the laws pertaining to personality rights ought to be addressed to assure individuals and entities their all-important recognition. It has been noted that for some time, celebrities in the UK had relied mainly on the traditional intellectual property laws since there was no clarity on these laws. Even though there have been slight changes in the recent years, it is imperative more legislation is done to ensure that cases do not prolong as has been the tendency recently. When laws are not as restrictive as they ought to be, hardworking individuals and entities that have worked for long to attain high status of goodwill could be adversely affected. Therefore, the UK’s laws on the mentioned areas need a fresh analysis to ensure they give all parties the much-needed relief. References Alter B, Trademark Registration Can Provide Financial Services Companies with Valuable Benefits (2010) 11 Journal of Investment Compliance BBC News. Naomi Campbell Wins Privacy Case (2004) accessed 1 April 2015 Boyd S, Not In My Name [2013] New law Journal Bryniczka P, Irvine V. Talksport Ltd.: Snatching Victory from the Jaws Of Defeat--English Law Now Offers Better Protection of Celebrities Rights (2004) 11 Sports Lawyers Journal Carty H, An Analysis Of The Economic Torts (Oxford University Press 2010) Coleman C, Defamation Act 2013 Aims To Improve Libel Laws (BBC News, 2013) accessed 1 April 2015 Coors C, Celebrity Image Rights Versus Public Interest: Striking The Right Balance Under German Law (2014) Journal of Intellectual Property Law & Practice Crawley K, Lindsay Lohan Wants $100M Over E-Trade Ad (New York Post, 2010) accessed 1 April 2015 Dahl D, Social Influence And Consumer Behavior (2013) 40 Journal of Consumer Research De Lacy J, Reform Of United Kingdom Company Law (Routledge-Cavendish 2002) Falkner G, Fines against Member States: An Effective New Tool In EU Infringement Proceedings? [2015] Comp Eur Polit Garcia J, The Personality Right In United Kingdom Law (2014) Vol. 1 The Carrington Rand Journal of Social Sciences Griss I, How Judges Think: Judicial Reasoning In Tort Cases From A Comparative Perspective (2013) 4 Journal of European Tort Law Helmers C and McDonagh L, Patent Litigation In The UK: An Empirical Survey 2000-2008 (2013) 8 Journal of Intellectual Property Law & Practice Hunt C, “Mens Rea”, Breach Of Confidence and The Implications For Englands Privacy “Tort” (2013) 72 The Cambridge Law Journal Intellectual Property And Your Work - GOV.UK (2015) accessed 1 April 2015. Intellectual Property Law - Essentials (2011) accessed 1 April 2015 Kenyon A and Richardson M, New Dimensions In Privacy Law (Cambridge University Press 2006) Lundie-Smith R, UK To Be One-Stop-Shop For Non-Infringement Across Europe? (2013) 8 Journal of Intellectual Property Law & Practice Mac Sithigh D, The Fragmentation Of Intermediary Liability In The UK (2013) 8 Journal of Intellectual Property Law & Practice Morgan J, Hello! Again: Privacy and Breach Of Confidence (2005) 64 The Cambridge Law Journal Mysoor P, A Pirate Too Needs To Be Heard: Procedural Compromises In Online Copyright Infringement Cases In The UK (2014) 3 Laws Norman H, Intellectual Property Law (Oxford University Press 2011) Oster J, The Criticism Of Trading Corporations And Their Right To Sue For Defamation (2011) 2 Journal of European Tort Law Tirohl B, Law For Artists Copyright, the Obscene and All the Things in Between (Routledge- London 2014) Read More