To what extent is it possible for an artist to restrict use of their image after death?
The issues raised by Robin Williams in attempting to restrict the use of his image, signature, name and likeness after his death are exactly those which the Guernsey Image Rights Law (GIRL) was created to deal with. GIRL was created to provide individuals (and also companies, to a lesser extent) with an ability to have a registered right which covered the ownership rights and usage rights of a person’s image, signature, strap line, photo(s) etc. This allows the individual to licence the right to some or all of these rights during their lifetime, or to allow their estate to manage those rights after their death. The idea was that by having a registration system, it prevented the need to build this detail into a will or have a separate contract, like Robin Williams.
The problem with GIRL, though, is that it is limited to Guernsey. However, if a celebrity, like Robin Williams, was based outside of Guernsey, but had a registered image right under GIRL, it is argued that his estate could use the fact of the registered image right as evidence of his wishes. This has yet to be tested, but Robin Williams has now raised the issue in the public domain.
What is the legal position around the use of the image of deceased celebrities?
Apart from the comments above, any images of a deceased celebrity will still be subject to copyright protection. So, depending upon who is the copyright owner, they can still object to images being used.
How have new technologies changed the use of the image of deceased celebrities?
The internet and social media in particular has made it easy for people to post images of almost anything by copying an image from one website or social media platform to another without a thought of whether they are doing anything wrong. The perception seems to be that if it is on the web, it is in the public domain and can be used by anyone for anything. This is wrong. Most images will at least be owned by someone—unless there is a clear permission to use the image, you cannot assume you can do what you want with it.
What are the challenges for controlling the use of images of deceased celebrities?
The biggest challenge is locating images being used without permission. The internet is vast and most businesses have their key priority as making, marketing and selling their services or products, not policing the internet. Celebrities therefore need a policy for dealing with images on the web which lists what the top priority issues are—for example, use of an image for financial profit etc., which should be stopped as opposed to use by an individual who blogs about the sector and uses the image as one of many to purely inform or educate people.
Originally written for Lexis®PSL
Gary Assim is ‘The Image Lawyer’. He is a partner at Shoosmiths and head of the firm’s national retail and intellectual property and creative industry groups. He is closely involved with developments relating to the new image laws in Guernsey and their applicability and use in the UK and globally, the likely benefits of which will include a consistent approach to licensing image and other intellectual property rights.
Interviewed by Jane Crinnion.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.