So... can no-one put celeb faces on their clothing after the Rihanna v Topshop case?

Clothes retailers across the country (from high street giants to market-stall holders flogging knock-off Che Guevara and Jimi Hendrix T-shirts) may now be thinking twice before printing celeb images on their products.

But does this mean retailers now have to get famous people’s permission before they can stick their famous mugs on their tops? Not exactly… let’s look at the law.

What did Topshop actually get done for?

It’s very important to point out that when this case started Rihanna didn’t automatically have a right to her own image. In fact the issue of “image rights” is still evolving in Britain, and judges don’t seem very keen to put a blanket ban on the use of celeb likenesses.

In this case the judges actually found Topshop guilty of something called “passing off”. Rihanna’s image was treated like a business asset, and her lawyers had to prove she’d lost money on that asset because of Topshop’s naughty product.

In this case the judge needed to answer three questions.

1. Is “goodwill” owned by Rihanna, and is Rihanna a “trader”?

First let’s look at that word “goodwill”. It’s one of the more misleading legal/business terms out there. Goodwill means an intangible asset (something someone owns that isn’t a physical object – in this case her image) has a value that you could have a good stab at putting a price on.

Probably unlike you, dear reader, Rihanna’s name and likeness is a huge money-spinner that loads of companies will pay top dollar for. So the goodwill is there.

But is Rihanna the “trader” of her own likeness? Well since she runs a very large merchandising operation already, and even designs clothes for Topshop’s rival River Island, we can safely say she is indeed the trader.

2. Has Rihanna been misrepresented?

To get to the bottom of this, the judges had to decide whether what Topshop had done somehow gave a false impression of Rihanna. In this case, the false impression was that Rihanna had given Topshop the go-ahead to use her face.

There were a few things that suggested (falsely) that Rihanna had authorised the photo. Firstly, it was a high-quality image. Secondly, it looked very similar to an album cover of hers. The image was actually snapped during the filming of one of her music videos in Northern Ireland.

Even worse for Topshop was the fact they did kind of have a relationship with Rihanna already. They’d asked her to open a new store and tweeted about it to all their followers. They’d also done a few competition offers featuring Rihanna in the past.

Customers might then safely assume they had a good relationship with Rihanna and the T-shirt with her face was official RiRi-endorsed stuff.

3. Did Rihanna lose money over this?

In other words, was her goodwill damaged? The answer was a resounding “yes” for two reasons.

Firstly, Rihanna (the “trader”, remember) could have lost sales if anyone keen to buy her official clobber bought the Topshop stuff instead of her own range of merchandise.

Secondly, it all made Rihanna look like she’s lost control of her own reputation in the fashion world. Which makes her stuff less exclusive, makes customers trust her less, and will inevitably cost her money.

So, because all three of these questions were ticked by the judges, Rihanna won the case.

But what does this mean for other celebs?

Well if you’ve bothered to read this article all the way through (instead of skimming to this heading) you’ll know that it all depends on the celeb’s circumstances.

All the same rules will apply to any other celeb looking to sue over an unauthorised image. They need to prove they’ve been misrepresented and that this has damaged them financially.

So a mega-star who’s very wrapped up in the fashion world (say David Beckham) probably has a very good case. At the other end of the scale would be Che and Hendrix (who are dead), but just above them would be a celebrity who doesn’t make money off merchandising their starry mug.

Will the law change in the future?

Although Topshop have been stomping around and acting like this is some outrageous legal revolution, the fact is that UK judges really don’t seem too keen to harden up “image rights” laws. They’ll probably keep it on a case-by-case basis.

However, as an interesting side note, Guernsey in the Channel Islands has just become the first country (in 2012) to pass some proper image rights laws. If Rihanna had registered her image rights there, well this could have been a very interesting case indeed.