The States of Guernsey is intending to release new Image Rights legislation during the 2nd quarter of 2012 . Image Rights registration will be a world first and will offer owners the ability to formally register their rights. These will be easily transferable and licensed, just as with other Intellectual Property rights.
Celebrities, sports stars and other publicly recognisable figures will be able to obtain the registration of their “image”, which includes certain definable aspects such as their name, or the one they are known by, voice, autograph, expressions, gestures or other distinctive attributes.
The protection is available to “natural persons” for example Usain Bolt, “legal persons” for example Apple as well as fictional characters. The law foresees, however, a minimal threshold to be met in order to apply for registration: images must be distinctive and have an “actual or potential value”.
Registration allows for exclusive rights to exploit the registered image. The legislation provides that the image rights of a “registered personality” are infringed by the use of an image which is either “identical” or “similar” to the protected image, thus entailing “likelihood of confusion on the part of the public, which includes the likelihood of association with that registered personality”.
Use by any third party of the same image or any image similar to the registered one, without that person’s prior consent, constitutes an infringement of the registered image rights.
The legislation allows for legal redress in the case of infringement of the the image rights. There are a number of exceptions:
(i) for non-lucrative benefit;
(ii) for educational purposes;
(iii) for the purpose of identifying the personality;
(iv) as an incidental inclusion in material that is publicly available. In any case, the exploitation must necessarily be “not detrimental” and must not “take unfair advantage, without due cause, to the distinctive character or repute of the registered personality”.
The key effect of the new law is that the registered personality is considered as a tangible asset, whose legal ownership is vested in the person registered as the image proprietor. This allows the registered personality to be transferred by the proprietor by assignment or licensed out.