November 19, 2018
Originally posted 2016-08-31 12:00:22
By Caroline Lau | amdlawgroup.com
Earlier this year, pop star Rihanna brought an infringement case against Arcadia Group Brands Ltd., the parent company of British fashion retailer Topshop over its sales of t-shirts bearing an image of her that was use without permission. The image is derived from an unofficial photograph taken during the shooting of her “We Found Love” music video in 2011. The the singer is suing for $5 million in damages. On Wednesday, July 31, the High Court in London found Topshop guilty of “passing off” in selling the garments, with Justice Colin Birss ruling that consumers were probably deceived into thinking the singer authorized the sale of the t-shirts.
The history of celebrities suing over the unauthorized use of their images on merchandise for the most part has not been a successful one despite the frequency of such occurrences (see the Peter Fonda, Dolce & Gabbana Easy Rider t-shirt case), so Rihanna’s won case may provide precedent for similar disputes in the future. However, her case has been analyzed and characterized as driven very much by the facts and specifics of its context. As the justice noted, there is “no such thing as a general right by a famous person to use control the reproduction of their image”, and besides, the image rights would have belonged to the photographer who took the photo. Additionally, the issue of trademark does not come into play since Rihanna’s name was only used in association with the t-shirt briefly before the marketing name of the shirt was changed from the “Rihanna Tank” to the “Headscarf Girl Tank” and “Icon Tank” following the artist’s initial complaints.
To count as “passing off”, three criteria must be met: goodwill, a reputation established by the plaintiff; misrepresentation, the defendant having had deceived the public through its actions; and damage, the financial harm of the alleged wrongdoing. Rihanna undeniably has made a global name for herself in music and pop culture. Furthermore, her style is distinctive and recognizable, placing her under fashion’s radar even as she herself sets foot into the industry, designing a fashion line at rival retailer River Island. This fact of her own foray into fashion aided her in the judgment of the case, as Justice Birss said the Topshop t-shirts result in loss of control over Rihanna’s reputation in the fashion industry. Significantly for her suit, the justice decided there was misrepresentation involved. Topshop also has an international reputation as opposed to the common street vendor hawking unofficial merchandise, and selling a shirt with Rihanna’s face on it deceives customers into buying it under the false belief that the singer approved the clothing’s sale. Although Topshop may not be guilty of purposefully misleading buyers, the effect of the public being misled is what matters legally. Justice Birss did not make an assessment of the damages in his ruling and according to BBC, there might be another hearing deciding damages.
Many of the specifics in the context of the case were taken into consideration in the final ruling, ultimately allowing for one in Rihanna’s favor. Her reputation as an artist, a style icon with her own clothing line, and Topshop’s reputation were major factors. Finally, the particular image itself also strengthened Rihanna’s case. The t-shirt features a shot of Rihanna from the chest up in costume for part of her music video, which her lawyers said was “very similar” to images used on one of her album’s CD sleeves, suggesting that it could be perceived to have a commercial aspect even though the singer did not permit the image’s use in selling the shirts. Topshop responded saying “there was no intention to create an appearance of an endorsement or promotion” and that “we do not believe it conveyed any false message to our customers.” The retailer is considering an appeal.
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The Lawyer. (August 1, 2013). “Rihanna crops Topshop.” Retrieved on August 1, 2013 from http://www.thelawyer.com/analysis/opinion/rihanna-crops-topshop/3008146.article
Entertainment Weekly. (August 1, 2013). “Rihanna wins case against Topshop.” Retrieved on August 1, 2013 from http://music-mix.ew.com/2013/08/01/rihanna-topshop/
BBC. (July 31, 2013). “Rihanna wins Topshop T-shirt court case.” Retrieved on August 1, 2013 from http://www.bbc.co.uk/news/entertainment-arts-23514738
The Guardian. (July 31, 2013). “How Rihanna stopped Topshop selling a t-shirt with her face on.” Retrieved on August 1, 2013 from http://www.theguardian.com/fashion/shortcuts/2013/jul/31/rihanna-topshop-t-shirt-face
Image Credit: http://us.topshop.com/?geoip=home