A recent case will have a bearing on the extent to which a party can include photographs of famous people in advertisements or on a website or otherwise have a website or otherwise have a website connected with a famous person. The case was Irvine-V-Talksport Ltd (High Court 13 March 2002).
Eddie Irvine, the Formula One racing driver, recently brought an action in the UK against a radio station, Talksport. Talksport had used in a promotional brochure a photograph of Eddie Irvine which had been digitally manipulated so that it showed him holding a radio on which the words "Talk Radio" (which was the name of the Defendants radio station at the time) had been attached rather than a mobile phone.
Eddie Irvine complained about this because he said that the use of the photograph suggested that he had endorsed the radio station, which he had not. He brought an action against Talksport for passing off. He argued that because he was a famous and easily recognisable racing driver, he had a valuable reputation which it was important for him to protect from unauthorised use by others.
Mr Justice Laddie, sitting in the High Court, agreed with him. He said that if a famous person, like Eddie Irvine, obtained a recognised reputation that was valuable to him (for example, because it enables him to obtain money for endorsing somebody else's business) then the law of passing off could be used to prevent other people using that reputation without the consent of the person concerned.
The Court took note of the fact that it was now very common for famous people (particularly sports people) to obtain money by endorsing products and allowing the people marketing the products that they had endorsed to use their name and image. The Judge thought that there was no good reason why, under those circumstances, passing off should not be used to prevent cases of false endorsement.
The Judge said that in order for Eddie Irvine to succeed in his case, he needed to prove:-
At the time of the acts he was complaining of, he had a significant reputation or goodwill of his own; and
Whatever the Defendant was doing gave rise to a false message which would be understood by sufficiently large section of the Defendant's market that the Defendant's goods or services had been endorsed, recommended, or approved of by Eddie Irvine.
On that basis, the Judge thought that not only did Eddie Irvine have a substantial reputation but that a not insignificant number of people who received the...