Chapter 12. Personality Rights

• Pages: 347-360

INTRODUCTION

Personality rights is an emerging a rea of law and various jurisdict ions are at differ-

ent stages of its development. English law has not yet embraced these rights as an

established tort. Recognition by some jurisdict ions of the independent tort of ‘appro-

priation of personality’, or the move by others to establish a ‘proprietary right’ or

legislation, suggests that an expansive approach towards the scope of protection of

personality rights has been preferred in order to preserve the commercial viability

of the marketable persona of celebrities. The critical question is whether the com-

mon law action of passing off provides adequate protection against unlawful com-

mercial exploitation of the images of celebrities like Jamaican reggae icon Robert

‘Bob’ Nesta Marley and Barbadian pop star Robin ‘Rihan na’ Fenty.

The nomenclature ‘personality rights’ is used i nterchangeably with ‘image rights’

and ‘publicity rights’. There are denitional nuances to bear in mind. Personality

rights can be explained as an i ndividual’s right to control the use of all aspects of

his personality, including his image, voice, likeness, catchphrases, signature poses

or other marks of identity. Groves denes publicity rights as ‘The i nherent right of a

human being to control the commercial us e of his identity, known in some jurisdic-

tions (for example Illinois) but not in English law. Sometimes known as personal-

ity rights, though this is often a common or colloquial expression’.1 This is to be

distinguished f rom image rights, which he describes as ‘the rights that enable one

to prevent the unauthorized use of one’s name, image or personal attributes. The

desire to exercise such rights may be connected with a wish to be left alone, or a

more complex desire to exploit those matters commercially’.

Further, ‘character merchandising’ is an extended term which refers to the use

of essential personality feat ures (name image etc) of ctional characters in t he mar-

keting and/or advertising of goods or services. ‘Personality merchandising’ is the

use of the essential attr ibutes (name image, voice and other personality features) of

real persons in the marketing and/or advertising of goods and services. In general,

the real person whose attributes are ‘commercialised’ is well known to the public

at large; this is the reason why this form of merchandising has sometimes been

referred to as ‘reputation merchandising’. In fact, from a commercial point of view,

merchandisers believe that the mai n reason for a person to buy low priced mass pro-

duced goods (mugs, scarves, badges, T-Shirts etc.) is not because of the product itself

but because the name or image of a celebrity appealing to that person is reproduced

on the product.2

1 Groves, A Dictionar y of Intellectual Property Law, 2011, Cheltenham: Edward Elgar.

2 World Intellectual Propert y Organisation, Character Merchandising, (WIPO) WO/INF/108, 1994, p 9.

CHAPTER 12

PERSONALITY RIGHTS

NATALIE CORTHÉSY*1

* Natalie Corthésy PhD (CCLS, Queen Mar y University of London); LLM (UCL, University of

London); LEC (Norman Manley Law School Jam aica); LLB (UWI, Cave Hill, Barbados); attorney-

at-law (Jamaica) (non-practising); Associate Dea n of Outreach and Conti nuing Legal Education,

Faculty of Law, UWI, Mona, Jamaica.

DOI: 10.4324/9781 35106 5108 -12

10.4324/97813 5106 5108 -12