City Research Online

Abstract

The English legal system currently does not recognise a right of personality, nor does it confer any exclusive rights in a celebrity’s name, image, likeness or identity. Absent such rights, protection against unauthorised exploitations of celebrity personality is only piecemeal, in that, the English courts ‘stretch’ the existing legal doctrines to remedy such misuses. The tort of passing off has been stretched the most in this regard, but owing to its requirement of misrepresentation, even the obvious cases of persona misappropriation could not be accommodated. Even privacy-based tort of breach of confidence was invoked, but privacy could not form the basis of protection as the object of protection under privacy is fundamentally different from that of under personality. The established IP rights, like trademarks and copyrights, were also applied, but it failed to deliver, since none of these principles were originally designed to accommodate personality claims. Such inadequacy and ineffectiveness of the available legal remedies have created a ‘lacunae’ in the English law, as the system is failing to provide the celebrities their desired levels of protection or any at all. The thesis addresses this lacunae in law and advocates that the only solution lies in adopting a distinct right of personality in the system. Proposing so is both pragmatic and practicable since such rights can only remedy personality misappropriation, and most importantly, adoption of such rights have provided the necessary solution in many other legal systems around the world. This thesis conducts a thorough analysis of the rationales that commonly underlies such personality rights and by evaluating the views of both proponents and opponents, constructs the legal foundation/basis of the right. A comparative study of ten (10) jurisdictions, combining both common-law states (like USA, Canada, etc.) and civil law states (like Germany, France, Italy, etc) is also conducted and based on the experience and practice of such compared states, potential models for a right of personality have been recommended in this thesis as the solution. The models recommended are designed to meet the modern realities of persona exploitation and is influenced by the current English IP regimes and the international jurisprudence available on personality rights. The proposed models are also designed with an in-built check and balance mechanism so that any monopolistic application of the right can be minimised and competing rights of free speech and/or public interest, if any, in the impugned exploitation are not undermined.

Publication Type:	Thesis (Doctoral)
Subjects:	K Law K Law > KD England and Wales
Departments:	The City Law School The City Law School > The City Law School Doctoral Theses Doctoral Theses

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