LLM Sample Dissertation

The Conundrum Relating To Personality Rights And The Role Of Breach Of Confidence 1
THE CONUNDRUM RELATING TO PERSONALITY RIGHTS AND THE ROLE OF
BREACH OF CONFIDENCE IN ITS DEVELOPMENT IN THE UNITED KINGDOM
Name
Tutor
Institution
Course
Date
Street

CHAPTER 1: INTRODUCTION
1.0 Definition of personal rights and breach of confidence concepts
Personality right or the right of publicity is generally described as the ability to regulate
the use of an individual’s name, image, likeness, voice or other unequivocal of one’s identity1.
This implies that an individual has the right of publicity that deters their image and likeness from
commercial exploitation without their permission; in this relation, the privacy rights protect the
individual’s personality from public representation without their consent. Washington State
Legislature under Chapter 63.60 RCW asserts that every individual or personality has the
property right in the use of their name, voice, signature, photograph, or likeness2. According to
the German law, personality rights represent the sundry of regulations that protects an
individual from an authorized public exposure.
Actually, the Higher Regional Court of Hamburg (5 U 51/11) categorized these rights
into three domains; core, private, and social. The “core” provisions under the German Law
protects all aspects of an individual’s intimate life while the “private” sphere includes other
aspects of private life such as family life; and “social” sphere includes social and business life.
The Canadian Law under the Civil Code of Quebec 1994 asserts that right to privacy is equated
to right to life and every person is obligated to respecting the reputation and the privacy of the
other person3. In fact, in Greece taking a photo or video even without necessary reproducing
1
McCarthy The Rights of Publicity and Privacy s 7:22 at 7-46 2d ed 2002
2
"Washington Statute 63.60.Personality Rights". Rightofpublicity.com. 1998-01-01.
3
Conroy, Amy M. (2012). "Protecting Your Personality Rights in Canada: A Matter of Property or
Privacy?". Western Journal of Legal Studies (University of Western Ontario) 1 (1)

them, or sculpturing individuals in paintings, results to an illegal act under the Article 57 of the
Greek Civil Code (57 ΑΚ, 57 Αστικός Κώδικας).
Breach of confidence on the other hand represents the common law tort that protects
individual’s private information that should be confidential4. Consequently, when such
information is disclosed, an individual has the legal liability to make claimants under the breach
of confidence. This law applies when the plaintiff provides evidence that the information is not
in public domain, it is confidential, and that it was disclosed without authorization. The English
law allows individuals to make claims when their confidentiality has been breached if they can
ascertain that the information had the magnitude of confidence, that it was provided under the
obligation of confidence, and that it was disclosed without individual’s authorization.
Information that is regarded as “not being in the public domain” means that it is essentially
inaccessible to the public5. Leaking of “some information” is still considered a breach of
confidence and it can be sued in a court of law. Personally rights and breach of confident are in
most instances intertwined and aim at protecting an individual’s right to privacy. Generally,
personality rights and breach of confidence regulations are recognized in various countries
around the Globe including the People’s Republic of China, South Africa, Jamaica, and France
among others. Therefore, personality rights are integral provisions especially in the regulations
of celebrity endorsements and commercial dealings.
4
. Wright, Tort Law and Human Rights (Oxford: 2001); W.V.H. Rogers,‘Tort Law and Human Rights:
A New Experience’, in H. Koziol and B.C. Steininger (eds.),European Tort Law 2002 (Vienna/New
York: 2003), pp. 35–64.
5
Ibid

In this connection, this study exploits the extent or the recognition of personality rights in the
United Kingdom. This implies that the study will conduct critical analysis in determining
whether these rights are exclusively established in the English law and how they can be
significantly improved to benefit the society at large. Personality rights are fundamental in the
commercialization of products and services especially where public figures endorse companies6.
The essay begins with delineating the definition of personality rights and breach of confidence.
The study continues to elaborate the emergence of personality rights and how they affect the
legal system. The paper then elaborates the research problem or the gap witnessed in how
personality rights are handled in the United Kingdom in comparison with other jurisdictions.
This will enable the investigator in finding out whether personality rights are beneficial in
protecting commercialization of personality and provide coherent recommendations to the UK
legal system.
1.1 ResearchProblem
It has already been identified that the image of any individual is a powerful tool in conveying
cultural experience, political commitment, raising awareness on social aspects, and even
promoting products and services. Basically, trading with one’s personality commands hefty
prices making it a strong market tool. David Beckham is purported to have received $20 million
for his advertising deal with Emporio Armani in 2007 while it is estimated that Tiger Woods
earned $99,737,626 in 2009 deals alone. Based on the huge sums of money and the seriousness
of the business involved in publicity practice, there is a desire for strong legal regulations
controlling the use of image and individual’s personality? However, courts and legal
6 6
Kontopoulous M., The Right of Publicity, Morality and Free Speech: An ‘Uneasy’ Relationship,2002

stakeholders in the United Kingdom are quite reluctant to identify and land on a common legal
response on publicity7. Despite the provisions set in the personality rights act in other countries,
UK courts do not seem to side with public figures when they are seeking compensations for the
breach of their confidence.
In Anna- Farid Lyngstad & Ors v Anabas Products & Anor [1977] FSR 628, the renowned
pop group made claims over the production of T-shirts and badges bearing their name and
photograph of the group. The plaintiff based their argument on the provisions of passing off
since personality rights are not fully-fledged in the UK law; however, the pop group had not
begun the business prior to the suit. The court rejected the plaintiff’s sort for relief and protection
of their property rights citing Henderson/Radio Corp. Pty. Ltd [1969] RPC 218 and Totalisator
Agency Board/Turf News Pty. Ltd [1972] RPC 5989 in which there was proof of a common field
of activity in the claim. Similarly, in the case of McCullouch v Lewis A. May Ltd10, the court
decided that there was nothing like commercial protection right to a personality, rejecting his
claims over exploitation.
The flawed personality rights cases are endless that have faced unhappy ending in English
courts. These included Byron v Johnston11 – use of the poet Byron’s name on a publication of
poems (allegedly) written by another poet; Wilkie v McCulloch. In a similar case of David
Beckham v In Touch Magazine, the plaintiff lost the case against the tabloid in connection with
an article claiming he had an affair with a woman described as a former prostitute. The court
7
Weber O,“Human Dignity and the Commercial Appropriation of Personality: Towards a Cosmopolitan
Consensus on Publicity Rights?”, (2004) 1:1 SCRIPT –ed 178
8
Anna- Farid Lyngstad & Ors v Anabas Products & Anor [1977] FSR 62
9
Henderson/Radio Corp. Pty. Ltd [1969]RPC 218 and Totalisator Agency Board/Turf News Pty. Ltd
[1972] RPC 598
10
McCulloch v Lewis A May [1947] 2 All E.R. 84
11
1822-1824 2S (SC) 413

rejected case on the grounds that the claimant did not prove enough the magazine acted
recklessly after being noted that Beckham had won a similar case in Germany.
In Naomi Campbell v Mirror Group Newspapers, MS Campbell sort court interpretation on
breach of confidence by the magazine publishing information about her and photographs without
her consent. In this case, the court found out that there is a possibility of breach of privacy for an
entity to publish personal information without their approval. However, the court had to
exclusively determine if the information was confidential. In the similar breadth, the case of
Irvine & ors v TalkSport ltd [2003] EWCA Civ. 42312, Eddie Irvine, a popular formula one
driver, raised claims against Talksport over damages in passing off. The defendant had exclusive
rights to broadcast the championship where the driver was participating. However, the company
embarked on a promotional campaign where they reproduced brochures with the driver’s image
on the front page. The court in this case sided with the claimant and sort for compensation over
damages of passing off13.
Arguably, the United Kingdom legal system has not settled on how to handle cases involving
personality and breach of privacy14. Some courts have held that an individual is not entitled to
commercial rights while others have found out there was a breach of confidence such as in Irvine
& ors v TalkSport ltd [2003] case15. Various scholars have found out that the UK Law does not
provide a coherent or consistent protection of a celebrity’s personality or image. The courts are
observed to be reluctant in giving individual’s monopoly rights in nebulous concepts such as
12
Irvine v Talksport Ltd [2003] 2 All ER 881
13
Carty H., 2004, “Advertising, publicity rights and English law”, I.P.Q. 2004, 3, 209
14
Weber O, “Human Dignity and the Commercial Appropriation of Personality: Towards a Cosmopolitan
Consensus on Publicity Rights?”, (2004) 1:1 SCRIPT –ed 178
15
Irvine v Talksport Ltd [2003] 2 All ER 881

names, likeness or popularity. There are various laws that exist in UK protecting intellectual
property rights and individuals against defamation; consequently, these provisions do not
exclusively protect celebrities from commercial exploitation16. There is also confusion in the
English Law on various aspects such as right of publicity, law of passing off, right to privacy,
property rights; hence, celebrities are in a quagmire as they do not know the specific law that is
protecting them. As a matter of fact, the English jurists should formulate a concrete and reliable
law that can be followed in protecting celebrities from commercial exploitation and from their
private information being disclosed to the public without their authorization.
1.2 Tracing the development of personality rights
1.1.1 Historiography of the Personality Rights in Europe
The legal doctrine surrounding personality rights can be dated back to the sixteenth
century during the codifications of European jurisdictions. Most of law scholars believe that
personality rights are an ancient concept that has only gained popularity in the late 20th century.
Reinhard Zimmermann asserts that the doctrine was initiated during the mediaeval period under
the actio injuriarum in Roman Empire that protected individuals against non-material interests
that included dignity and honor17. Johannes Voet says that Dutch jurists assimilated the concept
from the Romans in seventeenth century that distinguished between real and verbal
16
Boyd S., 2002, “Does English law recognise the concept of an image or personality right?”, Ent. L.R.
2002, 13(1), 1-7
17
Zimmermann (eds), A History of Private Law in Scotland vol 2 (2000)

representation18. In France, an individual was entitled to compensation as a remedy for what was
known as amende honorable aequum.
Personality rights were later witnessed in the German law during the shift from civil law
to criminal law in the nineteenth century. Zimmerman asserts that the German Civil Code made
it a crime to disclose individual’s information through the famous phrase “thrown out by the
front door…has managed to sneak in through the window19.” The Scottish law also realized
personality rights through the case of retention of dead babies’ organs. This emerged after an
argument on whether privacy rights were violated when scientist used dead babies’ organs in
research.
The English law relied more on Aristotle findings that allocation of honor depends on
distributive justice. Traditionally, claimants against honor were dependent on behaviors that
affected a person’s reputation such as insult in the public among others20. Detraction also meant
that something done in secret was not supposed to be reviled without the stakeholders’ consent.
This implied that the personality rights were more of distinguishing whether interests were in
secret or in public domain. In 19th century Germany, scholars were more focused on
degenerating the original sources of Roman law not alienated by canon and natural law. This
meant that they focused on freedom of contract, economic rights and compensation of pecuniary
loss and protection of honour submitted to criminal law. Austria, Greece, and Italy adopted the
German’s decision in 20th century21. The English common law of torts the protection of
18
t p1064; Voet, Commentarii ad Pandectas 47.10.1
19
Zimmermann (eds), A History of Private Law in Scotland vol 2 (2000)
20
G. Samuel, ‘“Le Droit Subjectif” and English Law’ (1987) 46 Cambridge Law Journal 264.
21
F.G. Jacobs and R.C.A. White, The European Convention on Human Rights (4th edn., Oxford: 2002)

individual’s honor and reputation has been traditionally protected by the defamation law. By the
end of 19th century, most of the European countries could distinguish the personality rights in
terms of bodily integrity, physical liberty, and rights in family life and sexual relations. However,
despite the tremendous evolution of personality rights, the English Law has not formally
embraced a tort of breach of privacy even though the Human Rights Act (1998) has played a
significant role in creating awareness22.
1.1.2 Recent development of personality rights
Personality rights have gradually gained popularity and have made impeccable impact in
today’s world. The emergence of celebrities endorsing businesses gave the rights of publicity
huge popularity and recognition around the globe. Arguably, celebrities and public figures work
extra hard to create a reputation and build an appealing image to their audience. As a result, they
are sort for endorsement in order to increase the sales of a product or create awareness of a new
product in the market. The audience associates the product endorsed with the character and the
personality of the celebrity and any misuse of their name, image or style may adversely affect the
impression they create about the product. For this purposes, celebrities invoke personality rights
as property rights that protects them from such exploitations and misuse of their persona. In
many cases, celebrities register their personality and gain exclusive rights to exploit their image.
Any act creating a likelihood of association with the registered image or their distinct
characteristic would amount to infringement of right to personality. In a recent case, The Court
22
J. Wright, Tort Law and Human Rights (Oxford: 2001); W.V.H. Rogers,‘Tort Law and Human Rights:
York: 2003), pp. 35–64.

of Appeal of Paris made a famous ruling on the football player Eric Cantona case that “the right
to privacy enables any person, regardless of reputation and profession, to oppose the
circulation, without express consent, of his image as part of his personality.”
The protection of individual’s right to privacy is viewed on a continental approach through
the European Convention on Human Rights (ECHR), European Court of Justice (ECJ), and
European Court of Human Rights (ECtHR). This collaborative effort came into existence after
the discovery that various countries viewed personality rights differently where others offer
protection in distinct fashion. In similar vein, the historical chronology of personality rights also
shows that “new” human interests are slowly crawling into the legal systems. There are some
emerging issues in the social life that need to be addressed in their legal aspects. For instance,
issues such as personality merchandising are quite current but very popular in the socio-cultural
context. Personality merchandising is a marketing aspect where “real” characters are used in
commercial activities.
This concept has increasingly become the 21st century strategy of marketing products and
services based on its ease in capturing the attention of potential customers. This situation allows
eventualities such as commercial exploitation or revealing of too much information that is
sometimes considered private. It is a concept that has been generally accepted as an international
tort. This implies that personality rights have evolved from the traditional concept that involved
insulting or disregarding an individual’s honor and dignity to a more commercialized aspect
where people sell their personalities. It is undisputable that personality rights and breach of
confidence are fundamentals in personality merchandising and legal systems need to develop
coherent structures and procedures to protect the involved entities.

CHAPTER 2: THE SITUATION OF PERSONALITY RIGHTS IN UK AND THE ROLE
OF PASSING OFF
2.0 Introduction
As observed earlier, the legal doctrine protecting person’s from the exploitation of their
confidentiality and publicity has been existence for many decades. A sundry of provisions have
been set up in order to regulate how people use each other’s information and private information.
Since the 20th century, the society has been obsessed with fame and celebrity status as they have
become icons and fashion setters23. They have immense influence in the society and they use
they status to influence individuals regarding their behavioral patterns. Business entities realized
this aspect and decided to use it for the purposes of gaining more sales or popularity within their
market boundaries. This strategy did not frustrate and it has become a norm for celebrities to
23
Barnett The American Right of Publicity and Visual Art: Solutions for the Growing Conflict Paper
Prepared for Congress of International Association for the Advancement of Teaching and Research in
Intellectual Property (ATRIP) New Delhi6-8 October 2002

become brand ambassadors and they are paid for it. This is attributed to the similarity in price
and quality of commodities and the inclusion of celebrities make consumers differentiate the
products or have a special attachment with the product being advertised. A celebrity who has
endorsed a business entity presents a distinguishable rapport with the media from her normal life
as established by Lord Hoffman in Campell v. MGN Limited; “what she sell is herself, her
appearance and her personality24. In fact, advertising agents use celebrities as a competitive
advantage in order to gain a commercial advantage.
Unfortunately, business entities find themselves misusing the personality of a celebrity or
even using their images or likeness without their consent. In cases where all the organizations are
utilizing the endorsement strategy for their business objectives, legal systems must be structured
to protect the entities. In various instances, celebrities rely on the personality rights in protection
of their rights in case of breach of agreement. Some countries such as the United States of
America streamlined such laws in mid-20th century. Conversely, the English law has distanced
itself from embracing commercial reality in the realm of personality rights. The United Kingdom
to be specific has remained skeptical in creating monopoly rights that protects an individual’s
personality25.
Celebrities in UK have been subdued to exploitation due to lack of stringy rules for
commercial exploitation against names, likeness, images, and even voice. Since 1869 U.K.
copyright law has not been effective in protecting an individual’s name. The court maintained
that it did not recognize the absolute right of a person to a particular name in the case Du Boulay
24
Campbell (Appellant) v. MGN Limited (Respondents) [2004] UKHL 22
25
H Beverley-Smith et al, Privacy, Property and Personality, 2005

v. Du Boulay 186926. A century later, English courts denied Elvis Presley Trademarks, Inc.27 an
application for trademark registration arguing that there is nothing like copyrighting a name. The
English law has continuously differed with other nationalities in how it treats personality rights.
2.1 Current laws protecting personality features in United Kingdom
Unlike various jurisdictions around the world, the United Kingdom justice system has
vehemently failed to intervene with the exploitation of image or other attributes of an individual;
whether living or dead. In 1931, the case of Tolley v. JS Fry & Sons LTD opened the discussion
regarding person’s right of publicity in United Kingdom. It was found out that most of the
frameworks protecting rights of publicity are patched from various existing laws which include
the following.
2.1.1 Trade Marks Act 1994
UK Trade Mark Act 1994 Section 1(1) provides that any sign with the ability to distinguish
products and services of a person’s undertaking from another, including word, design, numeral
and shape of goods, can be registered by a distinctive character28. Trademark laws serve the
purposes of protecting the originality or the source. However, trademarks become invalid when it
involves famous people as the personality of the public figure is much considered to the identity
of the origin rendering the law inapplicable. A good example is tourists visit the city of London
26
2 L.R.-P.C. 430 (1869). Du Boulay v. Du Boulay
27
Elvis Presley Trade Mark [1997] R.P.C. 543 at 556
28
Trade Marks Act 1994, s.3(1)(b)

and buy a magazine bearing the image of the royal family they are buying the likeness of the
image and pay little regard to the particular source29.
Similarly, trade mark rights are given on a first-come-first served basis; in case of identical
names they may receive no protection. Trade mark act under section 11(2) (b) indicates that use
of a mark as an “indication concerning…characteristics of Ent. L.R. 166 the goods or services
will not infringe.” This implies that if the name is registered for one purpose such as singing, the
same name can be registered for other purposes such as acting by a different entity. This was
illustrated in the case of Bravado Merchandising Services Ltd v Mainstream Publishing
(Edinburgh) Ltd `2588; the pop group “Wet Wet Wet” had protected the trademark of their books.
They were unable to prevent their name to appear on other book covers as their own book would
not protect the “other characteristics of the book.”
2.1.2 Copyright Designs and Patents Act 1988
Law scholars argue that copyright law appeared to be the perfect law protecting people
against personality rights. The law was subsequently rejected by the English Law in various
instances such as the Corp v. Exxon Insurance Consultants International Ltd case in 1982 with
the jury denouncing the existence of copyright protection over names, voice, likeness or other
aspects of persona. In 1988, the Copy Design and Patents Act (CDPA) sort to offer protection to
photographs, drawings, films, and sculptures of celebrities30. However, the exclusive rights are
29
York: 2003), pp. 35–64.
30
The Report on the Law of Copyright and Designs. HMSO, 1977. Cmnd.6732.

provided to the creator of the works and not the owner of the image or the voice represented as
illustrated in section 9(1) of the CPDA 1988. The celebrity only gains the copyright after the
works have been commissioned to him or her as stipulated in section 85 of CPDA 1988.
2.1.3 Passing off
This is the most commonly sort law by the celebrities in the United Kingdom when they need
personality rights exploitation. Passing off is viewed as the closest provisions that has grounds
for protecting right of a personality. It prevents an individual from passing off goods and services
as somebody else’s for financial gains31. This law is made up of three building blocks that
include goodwill or reputation, misrepresentation, and damages. The House of Lords made it
clear in the Jiff Lemon case that:
“The goodwill or reputation must be incorporated to the goods or services of the claimant,
the misrepresentation must lead to the confusion as to the source of goods and services, and that
confusion must cause damage to the claimant.”
This explanation however implicates that an individual cannot prevent exploitation without a
commercially valuable reputation or goodwill. This means that people who do not have status in
the society are not protected in this law; hence, it does not achieve the aspect of equity.
Secondly, a celebrity will find it challenging to proof the existence of a common field of activity
between the parties for them to establish there was misrepresentation and confusion created
which would eventually lead to the case’s failure. The issue of “common field of activity” was
borrowed from the case of McCulloch v. Lewis A May (Produce Distributors) Ltd after the
plaintiff sort to protect the use of his radio’s name “Uncle Mac” from being used by the produce
31

distributors to promote their cereals32. The judge ruled that there was no common field where the
two activities could interfere with each other; hence, the plaintiff lost the case. It becomes a huge
challenge to express whether there was a common field of activity especially when seeking
compensation from commercial exploitation33. This law is observed as protecting individuals
with goodwill or reputation subsists in their trading of products or services and not within the
persona.
Davies and colleagues finds it challenging for scholars to determine the legal relationship
between property and personality34. English courts have persistently argued that commercializing
memorabilia by third parties without the celebrity’s permission is permissible and cannot be
equated to passing-off35. They have argued that celebrities do not contribute to the quality of the
goods or content being sold, only that people buy because they know the image; hence, credits
should go to the produces and not the celebrity image depicted. Nonetheless, courts seem to
change their position such as in the case of Irvine v. Talksport Ltd. Irvine was able to protect his
image from being used by the entity in their promotion as the contract was only to broadcast the
championship. The judge in this particular case did not go further to establish a common field of
activity but ruled in favor of the plaintiff.
2.1.4 Defamation
In relation to the right of privacy, defamation was constituted in 1931 after the case of Tolley
v. Js Fry Ltd. The defendant had published a story that indicated the plaintiff had pad for the use
32
Davies, G., The Cult of Celebrity and Trade Marks: the next instalment (2004)
33
JT McCarthy, The Rights of Publicity and Privacy, 2nd ed, 2000
34
Davies, Margaret Jane & Naffine,Ngaire (2001) Are persons property?: legal debates about property
and personality, Ashgate p. 16
35
Gary Scanlan, “Personality, Endorsement and everything: The Modern Law of Passing Off and the
myth of the Personality Right” [2003[ E.I.P.R. 563

of his image in an advertisement which was alleged to diminishing his amateur status in golfing.
More recently, celebrity Paul Mckenna sort compensation for damages after the Daily Mirror
claimed that his PhD was bogus and purchased from an American University36. Unfortunately,
this law only protects people after tarnishing their name and status by incorrect representation. It
is not suitable for protecting people against the appropriation and exploitation of one’s
personality.
2.2 Personality rights in the United Kingdom: Current situation
Historically, since the case of Boulay v du Boulay37 English law has considered the use of
another person’s name is a situation that it cannot redress. There is no piece of evidence that
shows that the English law has made efforts in drafting laws that warrant rights to personalities
such as voice and image since various claims such as Elvis Presley Enterprises Inc. v Sid Shaw
Elvisly Yours cases38 in 1999. When the world welcomed the 21st century, there was much hope
that the English legal system will change its mind and embrace personality laws. On a turn of
events, the case by David Bedford claiming a public offence by the directory enquiries just left
many disappointed39. The most cited cases regarding tort on personality, Irvine v Talksport and
Douglas v Hello, seems not to fulfill the heralding of image rights in the UK. Irvine decision is
more of a passing-off ruling than the warrant of personality rights since the presiding magistrate
Laddie J mentioned “The sort of cases which come within the scope of a passing off action has
not remained stationary over the years ... Passing off is closely connected to and dependent upon
36
Michael Horsnell, “McKenna sues over claim he bought PhD”,The Times July 11, 2006. Available at
www.times.co.uk
37
1869) L.R. 2 430 PC
38
[1999] R.P.C. 567
39
R. Penfold, A. Batteson,J. Dickerson ‘How to defend image rights’ M.I.P. 2005,148 Supp (Brand
Management Focus 2005), 19-21

what is happening in the market place.”40 This implies that the role of passing off has been quite
effective in making claims against image rights and false endorsement in the country as in Irvine
case. This has prompted British celebrities to seek redress using this provision in instances where
they feel their personality rights have been infringed. Unluckily, passing-off lacks the ability to
provide a cause of action for unauthorised merchandise and right to privacy.
The privacy aspect of personality rights is also on the rock bend in the United Kingdom
despite various efforts to recognize the law41. The case of Kaye v Robertson42 illuminated this
concern in 1990 when it was decided; there was little protection of privacy in UK. There were no
torts available for protection against privacy infringement and if they were the freedom of
expression outweighed them. For instance, in David Beckham v In Touch Magazine case, the
plaintiff lost the case against the tabloid in connection with an article claiming he had an affair
with a woman described as a former prostitute. The court rejected case on the grounds that the
claimant did not prove enough the magazine acted recklessly and that the defendant had
exclusive freedom of expression. The plaintiff lawyers noted that Beckham had won a similar
case in Germany Even after the development of Human Rights Act of 1998, there is no clear
regulation that seems to protect the invasion of privacy. Notably, personality rights can be
viewed from a two perspective dimension; privacy and publicity43. The case of Douglas v
Hello44 seems to be a combination of privacy and publicity spheres of personality rights. This is
one of the issues that have affected the appropriation of personality rights in the UK. There is no
40
David Rose and Emily Shaw ‘Misappropriation without misrepresentation’ NLJ 154.7119(386)
41
R. Penfold, A. Batteson,J. Dickerson ‘How to defend image rights’ M.I.P. 2005,148 Supp (Brand
Management Focus 2005), 19-21
42
[1991] FSR 62
43
Hazel Carty. ‘Advertising, Publicity Rights and English Law’ IntellectualProperty Quarterly 2004 at
p.212.
44
Douglasv Hello!Ltd (No. 5) [2003] E.M.L.R. 31, 642, 720, 721

a clear distinction of privacy and publicity practice when it comes to protecting an individual’s
persona. On the contrary, the American law clearly defines the privacy and publicity rights and
links them in personality rights.
Modern UK judges are bearing the ancient mentality in regards to the right of privacy.
Lord Justice Mummery in his decision on R v Wainright in the Court of Appeal stated that he
predicts serious definition and conceptual problems if the judicial system allows the inclusion of
a new tort that incorporates such wide range of situations45. He continued to add that he is
guaranteed that nobody, the public, parliament, the press, wants a creation of a new tort that
would be challenging to solve. On the same matter of privacy, Lord Hoffmann raised his
contribution on this matter asserting that common law cannot be deduced specific definitions and
the witnessed gap can be filled by the judicious development without necessary having to create
a general tort in privacy. Wainwright sort compensation for damages for strip-searches by prison
warders which he argued that it interfered with his personal privacy. The county court had found
the prison staff guilty of interference with the plaintiff’s privacy and did constitute a tort of tress;
however, this decision was lifted by the court of appeal. The presiding judge is said to have been
quick to reject any tort quoted by Wainwright in his complain.
In a similar situation, Gordon Kaye v. Andrew Robertson and Sport Newspapers Ltd46, a
renowned actor Kaye wanted the court to stop the sport newspaper from publishing photographs
of injuries he had sustained in an accident. The plaintiff wanted the court to redress the
application of various torts including libel, trespass, and nuisance. Resultantly, the court only
found out the defendant was guilty of malicious falsehood but the other torts were rejected. The
45
[2001] EWCA Civ. 2081, at para. 42
46
[1991] FSR 62

jury argued that no tort of privacy existed in English law; hence, the actor only received a limited
remedy47. In this case, justice was not adequately served as the plaintiff only received a limited
compensation. The several cases looked at clearly illustrate that the recognized torts failed to
give adequate protection to the plaintiff despite numerous efforts to realize the privacy issues48.
More importantly to note, there is no distinctive differentiation of publicity practice and privacy
rights in the UK law49. Whereas courts try to embrace the realization of privacy violation such as
in Naomi Campbell and Irvine case, the lack of laws continuously frustrate their efforts. As a
result, the courts have chosen the narrow path of giving inadequate protection rather than going
ahead to develop a tort of privacy and that of personality rights.
Individuals in the UK are turning on to other laws with the aim of image and other
elements protections. This is because the issue of commercial exploitation is still rampant and
celebrities have to protect their hard earned reputation that brings them food on the table. For
example, a recent case involving Rihanna v Topshop where the latter was sued for selling T-
shirts with Rihanna’s image without authorization was stopped in 2012. Based on her evidence,
she was able to stop the sale following the passing-off and breach of confidence arguments50.
People are also turning into trade mark registration but as observed earlier, it has numerous
limitations; hence, it cannot cover all the aspects of commercial exploitation. Celebrities who are
registered in groups such as musician bands are also in the receiving end when they vulnerable to
47
McCarthy, The Rights of Publicity and Privacy, para 1:3
48
J. Beatson and Y. Cripps (eds.) The Freedom of Expression and Freedom of Information, (Oxford:
OUP,2000), p. 272
49
A. Morgan, “Privacy, Confidence and Horizontal Effect:“Hello” Trouble” (2003) 62 (2) Cambridge
Law Journal 444
50
Hazel Carty. ‘Advertising, Publicity Rights and English Law’ IntellectualProperty Quarterly 2004

dispute or break-up. There are no laws defining who will bear the group name, logos, and
signature in case of such an eventuality.
In this context, a British band named One Direction was in a dilemma when it had a US
tour and found another local band in California registered under the same name. In light of this,
there are few cases where claimants have won when seeking compensation on damages to their
image rights using the passing-off law or other related provisions in the UK51. It is discernable
that the UK response to publicity rights is of questionable nature and somewhat opportunistic. In
most instances, business entities have ended up triumphant even after clear cases of exploiting
the celebrity. The current laws are not a remedy enough to the prevailing situation since the only
cases that have been ruled in celebrity’s favor are countable52. Therefore, it is still unclear if the
UK courts will be able to address the conundrum surrounding the aspect of personality in the
near future.
CHAPTER 3: THE ROLE OF BREACH OF CONFIDENCE IN ITS DEVELOPMENT
3.1 Breach of confidence
This law recognizes that when an individual or a group conveys information in confidence
they expect it to remain private. If a person realizes that there is a potential breach, they can have
an injunction to prevent the disclosure. Consequently, if the act has already happened the
individual can go to court for compensation. In the absence of tort of privacy in UK, breach of
confidence remains as the equitable remedy53. The English law stipulates that breach of
confidence occurs when confidential information surfaces in circumstances that would be viewed
51
Frazer “Appropriation of Personality – a New Tort?” (1983) 99 LQR 281 at 281.
52
Beverley-Smith, The Commercial Appropriation of Personality, (2002 ) at 3
53
A v. B plc [2003] Q.B. 195

as unfair it was disclosed to others. Breach of confidence is observed as a violation of duty that
would constitute a civil claim54. It is mostly connected with the disclosure of information that has
commercial value but can also incorporate personal information about individuals. Some
scholars argue that breach of confidence is adjunct to intellectual property and can give
additional protection where copyrights are incapacitated.
Breach of confidence is increasingly be embraced in protecting tort involving privacy as
witnessed in Wainwright v Home office55 and Campbell v MGN cases. There are various
interpretations that have resulted from cases established in breach of confidence approach. For
example, even where the recipient acquires information from a legit source, it is paramount for
the recipient to know that the information is reasonably regarded as private. In Australia, the tort
of breach of confidence is more profound in protecting the invasion of privacy. in case of
Saltman Engineering v Campbell engineering56, the plaintiff complained a breach of confidence
by the defendant who went ahead to subsequently modify a design developed by the plaintiff and
sold it on its own account. Closer home in the United Kingdom, Coco v Clark57, Coco had
designed a motor-scooter engine and requested Clarke to license the design on their behalf. After
the negotiations failed, Clarke proceeded to manufacturing a scooter engine and Coco made
claims over breach of confidence.
3.2 Necessities of a breach of confidence
54
Lord Nicholls in Campbell v MGN Ltd [2004] A.C.457 at 464-5 summarised the law of confidence as
“[the imposition] of a duty of confidence whenever a person receives information he knows or ought to
know is fairly and reasonably to be regarded as confidential
55
Wainwright & Anor (Appellants –v- The Home Office (Respondents) : [2003] UKHL 53
56
Saltman Engineering v Campbell Engineering (1948) 65 RPC 203; [1963] 3 All ER 413
57
Coco –v- A N Clark (Engineers) Limited : 1969 [RPC 41,47]

There are four main pillars that constitute a case on breach of confidence. The plaintiff
has to prove that the information had quality of confidence, secondly there should existence of
obligation to confidence, and the complainant must show the breach of the obligation58.
3.2.1 Quality of confidence
This implies that the information must be clearly defined before seeking protection for
the court to determine if it was confidential. The jury requires sufficient evidence that the actions
are not speculative and an abuse of the process as in the case of Suhner v Transradio. There are
various elements that substantiate the quality of confidence.
i) Relative secrecy
This element is built on the aspects of novelty and originality. It simply means that a
combination of information will count in providing evidence. Basically, information that has
been built in public domain may be difficult to remain secretive; however, if there is sufficient
employment of human brain in conferring to the confidential nature upon the information, then
the information may be considered private59. It requires combination of facts and occurrences to
avoid the information being vague. Relative secrecy argues that information that seems to be or
is considered to a certain level to be confidential will not be protected under this provision. In
case of De Maudsley v Palumbo, the complainant revealed an idea for a nightclub to the
defendant at a party. The defendant quickly approached the Ministry of Sound and registered a
58
York: 2003), pp. 35–64
59
Law Journal 444

nightclub with the same characteristics they had discussed with the plaintiff. The case was
rejected on the basis that it was vague and it did not have sufficient novelty to prove it was
confidential60. Another case of Fraser v Thames TV, the plaintiff had an idea of a TV show and
they shared it with a scriptwriter who later disclosed it to a producer who made it. The court
found it to be a breach of confidence as there was sufficient evidence showing that it was
original.
The concept of relative secrecy gives a room for disclosing information to a number of
people without it losing the aspect of confidentiality. Like in the case of Douglas v Hello, the
information was confidential even though some people had the knowledge and there was an
intention to publish it. The problem arises when another unathourised entity publishes the
information even if the information was under relative secrecy61. This means that the information
loses taste and it would be somehow meaningless to the authorized party. This means that partial
disclosure may make the information loose part of its confidentiality and this would harm the
patent.
ii) Springboard doctrine
This element stipulates that an individual can take advantage of public domain
information by obtaining it in confidence and springboard themselves against competitors. This
incidence is mostly common in business entities that are trying to a have a competitive advantage
over the others. Competitors are obligated to enhancing integrity and confidential relationship
and it applies to issues like customer lists where public information is treated in confidentiality.
60
York: 2003), pp. 35–64
61
Hazel Carty. ‘Advertising, Publicity Rights and English Law’ IntellectualProperty Quarterly 2004

For instance, Terrapin made an agreement with Builders on supplying pre-fabs in case of
Terrapin v Builders Supply. Builders supply used similar supply methods after the completion of
the contract in competing with Terrapin. The court found the defendant guilty of using
confidential information, even though it was in public domain, for competitive purposes and the
plaintiff was given a limited injunctive relief62. This simply means that public information can be
relatively become secret and be protected under the breach of confidence.
iii) Private information
After the inclination of Human Rights Act 1998 in the UK justice system, the aspect of
private information was included in the breach of confidence clause63. This implies that in
instances where there is reasonable expectation of privacy then the information in question is
protected. It also indicates that information can be private despite the fact that it is widely
disclosed to an extent it is not considered as confidential such as Campbell v MGN. Similarly, the
element of private information protects public figure in public places. The element of private
information however relies on various factors such as nature and purpose of intrusion, if the
observer was aware of the lack of consent, and how the information was leaked before it is
treated as quality of confidence64.
3.2.2 Obligation of confidence
62
York: 2003), pp. 35–64
63
64
Law Journal 444

Obligation of confidence illustrates the agreement between the information holder and the
subject. It answers the question how was information confidentiality supposed to be handled in
the initial contract.
i) Direct obligations
This represents the relationship between the subject and the defendant such as contractual
terms. An express contract is the one an individual entered at the beginning of the transaction
such as an employment contract. An implied contract refers to the relationship is treated as of
“right type” such as professional adviser and client. Information leaked in such contractual terms
is claimed under the law of confidence as opposed to the law of contract65. The nature of the
relationship plays a significant role in determining if there was an obligation of confidence.
Personal relationship or even fiduciary relationship determines the confidentiality that the parties
share. It is also important to note that the manner of communication is quite important in making
the recipient understand that the information was actually given to them in confidence66.
ii) Third party recipients
If the contracting parties do not have a direct or intrinsic relationship and they were not in the
initial relationship of confidence then the recipient is a third party. In any instance that the
information is bound to reach a third-party, there should be a clear knowledge of confidential
65
Barnes,Robin. OutrageousInvasions: Celebrities’ Private Lives,Media, and the Law (Oxford
University Press,2010
66
JT McCarthy, The Rights of Publicity and Privacy, 2nd ed, 2000

status. This is because if a third-party maintains that he or she made the confidentiality status at a
later date, then they can argue that the disclosure of the information was unconscious67.
iii) Strangers
Parties in the contract may not have any relationship or agreement between the two. They are
basically strangers.
CHAPTER 4: PERSONALITY RIGHTS POSITIONS IN DIFFERENT JURISDICTIONS
4.0 Introduction
67
Law Journal 444

This chapter focuses on how personality rights are treated in other countries around the world
other than the United Kingdom. As mentioned in the introductory part, various countries have
realized and embraced the personality rights provisions to protect their public figures from
exploitation and unauthorized disclosure of their private information. Similarly, the study has
found out that the breach of confidence act is more profound in the United Kingdom as a
provision that protects most of the public figures against exploitation. Therefore, this chapter
wishes to highlight how these two provisions are treated in India and the USA as compared to
the UK.
4.1 Personality rights and breach of confidence position in India
The emergence of personality rights in the Indian law has abolished the dominance of
intellectual property rights in protection of patents, designs, trademarks, and copyright. Although
the intellectual property remains the most significant law in regulating intangible aspects of the
media, the current advent of public figures being used in media commercials brought another
line of thought in the jurisdiction. The Indian system understands the role played by the media in
influencing public opinion; hence, laws governing the media commercialization are enshrined in
the constitution68. Collectively, India refers to the provision protecting public figures as celebrity
rights. However, Nidhi Kumari believes that the Indian legal system is still milestone behind in
properly governing the celebrity rights even though they have been established into the system69.
The main challenge is experienced in handling the modern phenomena of celebrity’s integrity
68
Garima Budhiraja, Publicity Rights of Celebrities: An Analysis Under the Intellectual Property Regime,
7 NALSAR STU L. RW 86 (2011)
69
Nidhi Kumari, Moral Rights Of Author, Academike (Apr. 6, 2015),
http://www.lawctopus.com/academike/moral-rights-author/ (

rights. Nonetheless, the courts have in numerous instances upheld claims of personality rights70.
In light of this, the Indian Celebrity Rights are envisaged in three perspectives.
i) Moral/Personality rights
The Legal Service India describes the personality as the characteristics that position’s an
individual’s identity in the society. It is an outward representation that a person creates in the
eyes of the others in the way he is expected to behave in the society71. Based on a person’s
personality, they can utilize their talents in making contribution to the society. This clause clearly
indicates that an individual’s property is an extension of their personality.
ii) Privacy rights
Significantly, celebrities have a popular image in the society and the public tends to
personalize their characters; that is, they become fond of their every aspect and move they make
in life. It goes to an extent that their dress code, make-up, lifestyle, and even family is in the
public domain. This happens despite the fact that the celebrities have not disclosed that
information to the public; hence, there is a need for a regulation to control the exchange of
private information with the public. The right to privacy under the Article 21 of the Indian
constitution asserts that all the individuals are protected from invasion of private sphere even by
the government72. A person whose privacy has been violated is obligated to compensation
through a tort action under the India law73. Notably, the Indian Right to privacy applies to the
70
Tabrez Ahmad & Satya Ranjan Swain, Celebrity Rights: Protection Under IP Laws,16 J. OF INTELL.
PROP. RTS. 7-16 (2011)
71
Anurag K. Agarwal& S.S. Sagar Priyatham, Moral Rights in Copyright Law, (2003) 8 SCC (Jour) 3
72
Anurag K. Agarwal& S.S. Sagar Priyatham, Moral Rights in Copyright Law, (2003) 8 SCC (Jour) 3
73
PROP. RTS. 7-16 (2011)

invasion of privacy and not the use of an individual’s likeness. This provision can be compared
with the UK’s set of rules that protects celebrities from false misrepresentation. The major
difference is that in UK privacy issues are not enshrined in a policy but depends on the judicial
judgments based on the case. As observed here, the Indian law has a well-established provision
that protects individuals on privacy matters specifically.
In 2014, Shivaji Rao Gaikwad (aka Rajinikanth) v. Varsha Productions, the plaintiff filled a
suit against the defendant for an alleged violation of celebrity rights. In the case, the popular fim
actor Rajinikanth approached the Madras High Court to stop the release of a Bollywood movie
titled “Main Hoon Rajinikanth.’ To begin with, the actor argued that the producer of the film
infringed his personality rights by using his name as the title of the film. He goes on to argue that
his characteristics, nature and style of acting were all copied by the defendant; hence, there was
infringement of personality rights74. Secondly, the plaintiff sort compensation for the violation of
his rights to publicity as the defendant was purported to be gaining economically by gross
commercialization of his name and reputation. The third argument which touches the rights of
privacy was that the actor believed that the film contains scenes of immoral nature that were not
only defamatory but also breached his privacy issues. The court found the defendant guilty of
violating all the three accusations and damaging the reputation and goodwill of the plaintiff.
iii) Publicity/Merchandising rights
74

The right to publicity in India is described as violation of economic value associated with the
name and fame of a person. For this right to be acknowledged, the individual must prove that his
or her fame was in form of merchandise or in that it was intended to promote a product or an
activity75. In simpler terms, the defendant must have used the image or likeness of the plaintiff
for economic gains. In the case of Zeta Zones v Hello Ltd, the presiding magistrate clarified that
the right to publicity is “an exclusive right of a celebrity to the profits to be made through the
exploitation of his fame and popularity for commercial purposes.”
Under Article 21 of the Indian Constitution, an individual can access the right to publicity by
merely registering to two laws. Firstly, an individual can acquire trademark rights where they
may apply for the protection of their name, likeness, nicknames, among other identification
unequivocal with the trademark registry in order to safeguard their misuse76. The defendant in
the case of DM Entertainemnt v Jhaveri was stopped from using the trademark “Daler Mahendi”
by the Delhi High Court meaning that the trademark law is applicable. Secondly, an individual
may apply for a copyright law to protect a specific image in the name of a photograph, painting,
and sculpture. However, the challenge arises where the celebrity has allowed his photograph to
be taken then finds out t being used later77. A similar case involving rights to publicity
infringement was witnessed in Titan Industries v M/S Ramkumar Jewelries78. Generally, the
right to publicity comprises of both laws in order to secure the celebrity from financial
misappropriation.
75
76
PaulM. Schwartz, Beyond Lessig's Code for Internet Privacy: Cyberspace Filters, Privacy-control and
Fair Information Practices,[2000]WIS. L. REV. 743, 751.
77
PROP. RTS. 7-16 (2011)
78
Titan Industries Ltd. vs M/S Ramkumar Jewellelrs on 26 April, 2012

In the case of ICC Development (International) Ltd v Arvee Enterprsies79, Delhi High Court
found out that publicity rights are the facet of privacy rights which are enshrined under Articles
19 and 21 of the Indian constitution. Drawing from the previous cases such as DM Entertainment
Pvt. Ltd. v. Infant Gift House and Ali v. Playgirl Inc.80, the court believed that unauthorized
appropriation of an individual’s persona which results to an unearned commercial gain to another
was against the constitution and is against the rights to publicity.
Basically, in India the situation regarding personality rights cannot be defined as adequate or
inadequate. The jurisdiction is observed as deficient in dealing with modern issues regarding
endorsements. However, what can be observed is that the personality rights, rights to privacy and
publicity are all referred to as celebrity rights. As defined in the case of ICC Development
(International) Ltd v Arvee Enterprsies81, the right of publicity has evolved from right of privacy
as the jurists tried to obtain a veil between privacy and exploitation based on economic matters.
In comparison to the UK law, the Indian system is quite advanced in acknowledging the
difference between privacy and commercial exploitation. The UK law also deals with private
matters under the breach of confidence provision which is not present in the Indian jurisdiction.
Conversely, the Indian law takes a double-standard approach by extending to say that no persona
can be monopolized. This argument contradicts with the provision that restricts the utilization of
an individual’s image or likeness stipulated in Article 19 and 21 of the constitution82. It can be
79
ICC Development (International) Ltd. v. Arvee Enterprises and Anr., 2003 (26) PTC 245;
80
447 F Supp 723
81
2003 (26) PTC 245 (Del)
82
Shivaji Rao Gaikwad v. Varsha Productions, 2015 SCC OnLine Mad 158: (2015) 1 LW 701 : (2015) 2
CTC 113 (hereinafter Shivaji).

concluded that personality rights in India are subject to two major facets which are privacy and
publicity.
4.2 Personality Rights position in USA
The United States of America is consistently cited among the jurisdictions that have embraced
the personality rights effectively83. It is described as the use of someone else’s name, likeness, or
other attributes exploitative purposes. Personality rights in the United States are recognized in
two perspectives and they are realized in most of the states.
i) Privacy laws of the United States
This provision exclusively deals with the legal concepts surrounding the invasion of privacy. The
tort of common law is based on aggrieved individuals for the violation of their private spheres. It
is broadly defined as the “right to be let alone.” It incorporates a sundry of regulations such as
right to unwarranted search or seizure, right to free assembly, or right to family life84. Currently,
the law has evolved to accommodate public figures due to the disclosure of their private life
which at times is considered as too much. Most of the legal articles base this concept on Brandeis
and Warren article85 that stated that the media was overstepping its mandate by failing to observe
the limitations of propriety and decency86. In the modern tort law, the right to privacy is placed
into four major categories.
 Intrusion of solitude and seclusion
83
University Press,2010)
84
Restatement 2d of Torts § 652E (1977), The American Law Institute
85
Warren and Brandeis, “The Right to Privacy” (1890) Harv.L.Rev. 193
86
Mason, Alpheus Thomas (1946), Brandeis: A Free Man's Life,Viking Press,p. 70.

This element protects individuals from intrusions upon their private space either physically,
electronically, or in any other means. This includes privately conducted investigations or
mounting electronic devices that will tap private information is considered an offence. These
restrictions are also subject to journalist and other media persons. In the case of Barber v Times
Inc.87, the defendant took pictures of celebrity Dorthy Barber giving a pregnancy delivery to a
baby boy. The plaintiff filled a suit for privacy invasion asserting that the photographer infringed
her right to privacy by unauthorized entry into the hospital and the defendant was found guilty.
The complainant was awarded damages amounting to 3000$ for publicizing confidential matters
even though the media published accurate truth, it was not authorized for the same88. In this
particular case, the journalist was guilty of unauthorized entry and forcefully photographing
which entirely violates the solitude and seclusion of a hospital environment.
 Appropriation of name or likeness
Most of the American states have established statutes that prohibit the use of person’s images
and likeness without their consent as an invasion of privacy. It is important to note that this
action can be found in both the right of privacy and right to publicity. For instance, the case of
Cohen v Concepts Inc.89, the claimant’s image and her daughter were used on cosmetic products
packaging without their authorization. Even though the defendant argued that the images were
not identifiable, the court awarded the plaintiff damages due to disclosure of private family life
by the defendant. The right to privacy generally seeks to protect the subject in most cases
87
Barber v. Time, Inc., 159 S.W.2d 291 (Mo. 1942). 7
88
William Prosser (1960), "Privacy", California Law Review (Vol48, No. 3, pages 383-423)
89
Cohen v HerbalConcepts Inc. (1984) 63 NY.2d 379

celebrities from disclosure of information that may put them in an embarrassing or humiliating
situation that may lead to the feeling of insecurity90.
 False light
False light is a legal phrase in relation to privacy and it can be equated to defamation. It is
mostly concerned in protecting an individual from mental and emotional well-being when placed
in publicity. In most cases, this statute favors non-public figures who are subjected to false
publicity91. This applies when the presented information is incorrect or made with actual malice
such as New York Times v. Sullivan. The information can also be embarrassing or highly
offensive and for these reasons damages may be recovered.
 Public disclosure
This element protects individual from the event where information that is not of public
concern is revealed. In this concept, the fact that the reveled information was accurate does not
matter as long as the defendant disclosed confidential information to the public domain.
ii) US right of publicity law
The right of publicity in the U.S was first witnessed in Haelan Laboratories Inc. v Topps
Chewing Gum Inc92. Both the plaintiff and the defendant were chewing gum manufacturers
where Haelan had contacted a baseball athlete for an endorsement with the assurance that he
would not grant similar rights to another entity. Since the athlete had not given Haelen the rights
90
91
oey Senat (2000), "4 Common Law Privacy Torts"
92
Haelan Laboratories v Topps chewing gum (1953) 202 F.2d.866(2d cir)

to sue on their behalf, it was quite difficult to employ the concept of right to privacy. Resultantly,
the court gave the plaintiff relief by coining the right to publicity since Haelen had exclusive
rights to publish the image of the athlete. The plaintiff is only required to prove that the image
used by the defendant resembles the one registered and it does not have to be formal or full name
even a nickname is well applicable93. For instance, in Faegre & Benson, LLP v Purdy94, the court
ruled out that the defendant had misappropriated the claimants name by the use of his
pseudonym in the domain of the website.
The American law interprets likeness as the visual image of an individual whether in a
photograph, drawing, caricature, or through any other representation. In the USA laws, the right
of publicity is usually intertwined with the trademark issues95. For instance in the case of
McFarland v Miller96, the plaintiff was complaining over the use of the label SPANKY
MCFARLAND as a restaurant name by the defendant. The court followed the issues of right of
publicity and trademarks as stipulated section 43(a) of the constitution on the aspects of names or
other registered trademarks. The American federal law on publicity rights is disseminated into
various principles.
The principle of descendible, transferrable, and fixed term argues whether the right of
publicity survives after the death of the holder with states such as New York limiting it to
lifetime while others still feel that the rights extends even after a person’s death. The grandfather
clause also looks at trademark rights that were acquired a long time ago before enactment of a
93
University Press,2010
94
Faegre & Benson, LLP v Purdy, 367 F. Supp. 2d 1238 (D. Minn, 2005)
95
JOHN G. FLEMING, LAW OF TORTS 741 (9th ed. 1998); R. M. Williamson, Actio Personalis
moritur cum Persona in the Law of Scotland, 10 L. Q.
96
McFarland v. Miller, 14 F.3d 912 (3d Cir. 1994)

similar use in current situation. A good example is the use of the word Winston Churchill.
Exemptions from liability are the clause that separates the violation of rights to publicity from
the freedom of speech granted by the constitution. The rights to publicity for instance would not
be awarded in news items, biography, history, fiction, commentary, and parody. To claim right to
publicity, it is paramount for the plaintiff to show that the defendant used an aspect of his
personality that is already protected by the law for an exploitative purpose and that there was no
prior consent or authorization given97. Consequently, the USA personalities rights are ailing from
disconnect among various states; hence, the stakeholders are working on harmonizing the law.
97
Barnes,Robin. OutrageousInvasions: Celebrities’ Private Lives, Media, and the Law (Oxford
University Press,2010)

LLM Sample Dissertation

More Related Content

Similar to LLM Sample Dissertation

Recently uploaded

LLM Sample Dissertation