The eagerly awaited image rights legislation in Guernsey is due to come into force on 3 December 2012. It will make Guernsey the first jurisdiction in the world to offer registered image rights, a new form of intellectual property. This will interest anyone currently in the public eye anywhere in the world, or who is not yet well known but anticipates having a high public profile in the future.
The Image Rights (Bailiwick of Guernsey) Ordinance, 2012, allows any person, anywhere in the world, to register and protect their personality, i.e. their name or essential brand, and any images associated with that personality. There is no requirement that that person should be resident or established in Guernsey, and if they have assigned the rights to exploit their image to a third party, that third party can apply to register those rights.
The personality of any of the following can be registered:
• individuals
• corporate entities
• joint personalities (e.g. comedy double acts)
• groups (e.g. sports teams and pop groups)
• fictional characters (e.g. James Bond or cartoon characters)
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The legislation specifically allows registration of the personality and images of dead people, if they died within 100 years prior to the application – think, for example, of the continued significance and value of Michael Jackson, Marilyn Monroe, Elvis Presley.
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Registration of a person’s personality will give the person who has registered it “image rights” in relation to that personality. Image rights are rights to control the commercial use of a person’s identity and distinctive images, voice, expressions, characteristics or attributes associated with that person.
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Any of these aspects of a person’s personality may be registered on the public register of images in Guernsey. Specific images need not be registered, as once the personality itself has been registered this gives rights to control commercial use of any images associated with the personality. However, registered images are easier to enforce.
While the images registered will be publicly viewable on the register, serving as notice to the public of the images the proprietor considers as protectable, it is proposed that details of the proprietor will not, for privacy reasons.
The legislation will also provide for moral rights, including the right to object to derogatory treatment of the personality and its images, which could prove useful as an alternative to costly defamation proceedings.
The Ordinance sets out appropriate exceptions to image rights, to allow use which is in the public interest – for example for news reporting, parody, satire or the arts. Private, non-commercial use of images will not constitute infringement.
A person need not be famous at the point of registration, but will have to be well known in any part of the world at the time of the alleged infringement. Penalties for infringement of image rights will include damages, accounts of profits and injunctions.
In these days of global mass media and the internet, these Guernsey registered rights will be enforceable in Guernsey, but have been designed to be fully compatible and integrated with modern media, including broadcasting, satellite transmission, the internet and other electronic communications.
One of the main attractions of the legislation, from a succession planning viewpoint, is that it enables personalities to incorporate image rights formally into their succession planning for the first time.
A registered personality and the associated image rights are property rights and can therefore be transferred and licensed in the same way as other personal, movable property.
As these rights can effectively be registered and renewed in perpetuity, they can be treated as an asset for estate planning purposes. These image rights would then sit alongside any other intellectual property assets and would form part of the portfolio of rights owned by the personality or their company.
Kate Storey is a senior associate and Jason Romer a director at Collas Crill, the leading IP firm in the Channel Islands
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