One of the most problematic issues of Wayne Rooney’s new £300,000 per week contract was agreeing his image rights. However, the future handling of image rights is about to change.
Image rights refer to an individual’s proprietary right to their name, physical characteristics, image and ‘style’ and the right to prevent unauthorised use of any of these.
There are currently no formally recognised rules on image rights in the UK. Therefore, a player will have to protect his image through an unsatisfactory combination of privacy laws, breach of confidence and passing off.
However, a player can make a profit by selling or licensing his image rights to his club or to a third party. The relevant club or third party will then obtain permission to use the player’s image for sponsorship, marketing and commercial purposes.
An image right is a contractual right set out in an agreement between club and player. Protection can be drawn from certain areas of the law, including:
- Law of privacy: There is no law of privacy as such in the UK, but Article 8 of the European Convention of Human Rights incorporates that everyone has the right to respect for his private life. Article 10 also provides that everyone has the right to freedom of expression – the protection of the reputation or rights of others.
- Breach of confidence: This protects information that is confidential in nature and disclosed with an obligation of confidence.
- Trade mark rights: Names or images can be registered as a trade mark and acquire the protection afforded to such a right. A variety of top sports stars, including Tiger Woods, have registered trade marks. The Tort of passing off also protects the commercial value of an individual’s reputation. However, a trade mark in one country does not prevent its unauthorised use in another unless and until those rights are also registered in that country.
- Advertising standards codes: These include specific provisions regarding the use of images via broadcast and television advertising, to protect the use or association of a person without their permission.
Until now, no legislation has existed anywhere in the world that exclusively protects someone’s image, despite efforts from European privacy legislation. However, Guernsey has now become the first jurisdiction in the world to establish an individual legal code solely for the registration and protection of ’image rights’. Once image rights are registered, any profits or royalties can be paid into a Guernsey incorporated company for the individual to enjoy the substantial capital and income tax benefits associated with the regime.
It will now become more common for top-flight sports stars and celebrities, depending on their tax status, to base their image rights in a company in the low tax jurisdiction of Guernsey. Under this new registration scheme, a sportsman is able to create a distinct and marketable asset with significant tax benefits. This, in addition to the substantial earning capacity that a sports star such as Wayne Rooney can accumulate, gives sports stars both greater financial and legal protection. Guernsey has now positioned itself among world leaders in innovative IP legislation, seeking to gain economic advantage and establish a global reputation.
Daniel De Saulles is an LPC student at the University of Law, Birmingham. Read all his sports blogs for Lawyer 2B.
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