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Howzat?! Cricketer’s Image Rights “Sold for £22 Million”!

The phenomenon of the celebrity has captivated the minds of modern society, transcending physical, social, economic and even political barriers.  Now the island of Guernsey has seized on this to pioneer a new era for image protection.

The Island’s States of Deliberation recently approved specific legislation and the establishment of a central register to recognise and regulate image rights. It is anticipated that legislation will be in force by the London 2012 Olympic Games. Trainee solicitor Dilini Lokuaddassuriyage explains further.

The cult of celebrity and global iconicity have dramatically inflated the value of image rights associated with the famous, including sporting heroes, academics, Hollywood actors and also across the ocean, Bollywood stars. Such protection can also be valuable long after their death; indeed, the estate of Elvis Presley has tirelessly protected his image from unlawful use. Individuals who are currently famous – or who have been previously – are seeking to protect and exploit their image rights as a valuable commercial commodity. It is believed that Albert Einstein assigned his image rights to a charity before his death and, more recently, the Indian cricketer Sachin Tendulkar sold his image rights to a subsidiary of Saatchi and Saatchi, reportedly for £22 million.

So what exactly is an image right? Simply, it is a personality right – the right to control the commercial use of a person’s identity and associated images, including their name, voice, slogan, signature, distinctive expressions, physical characteristics and attributes.

However, a dilemma arises as, currently, image rights are not expressly recognised under English law. Indeed, very few countries around the world have recognised, or created a basis for, image rights as a separate intellectual property right.

New Rights Expected

It is expected that the following will be included in the Guernsey legislation:

  • The creation of a living personality right (possibly also for fictional characters) for which the protection period will be indefinite, including after death
  • The rights are to be treated as personal property and are, therefore, capable of being licensed, assigned and disposed of as with other personal property rights
  • Creation of a register of image rights
  • Creation of a civil offence for infringement of image rights, with appropriate defences for educational, private use and news reporting

Tax Advantages

One of the potential advantages of looking to Guernsey for image rights protection is certainly the tax benefits. Guernsey-based companies are endorsing the structuring of royalties for commercial image use through a Guernsey-incorporated company. Any profits or royalties derived from image rights can be paid into the Guernsey company to gain the maximum tax benefits. As long as the individual concerned is not a Guernsey resident, the income will not be subject to income tax, local taxes, inheritance tax and other death taxes, VAT, GST, indirect taxes and capital transfers. Moreover, corporation tax is charged at a rate of zero percent. A direct comparison with the UK demonstrates the extent of the tax savings, where HM Revenue & Customs could claim up to 50 percent as income tax.

So it seems that in the very near future, image rights will become a separable and marketable asset in the realm of intellectual property rights. If successful, other jurisdictions may consider adopting a similar approach in the context of their own tax regimes.

A candidate appearing on the hit show ‘The Apprentice’ became a sensation for introducing himself as “the brand” – well, he certainly had the right idea!

Silverman Sherliker’s Intellectual Property Unit advises on all aspects of copyright, trade marks and media rights. Please contact Dilini Lokuaddassuriyage (dpl@silvermansherliker.co.uk) or any member of the IP team on +44 (0)20 7749 2700.

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