By Larry Fenelon*

Ever wondered where Irish law stands on the use of a sports star’s image for profit without the consent of the athlete in question?  Think of a photographer who compiles a photographic calendar of sports stars which he/she sells for profit.   What rights do our athletes have over their images and can they lay a claim on any such profits?

The most celebrated case of a sportsman’s image rights came before the UK courts in 2002 when Formula 1 race driver, Eddie Irvine took an action against UK radio station, Talksport.  Irvine sued Talksport because they had used a doctored image of Irvine holding a radio to his ear, which carried the words "Talk Radio" on it. This photograph was used on a Talksport brochure which they used in an advertising campaign.

Irvine argued that this was a false endorsement of the Talksport radio station amounted to the tort of ‘passing off’ (copying a product or service which confuses members of the public).  The Court agreed.

In the assessment of damages, Irvine said that he would “...not get out of bed for less than £25,000.00...” for such product endorsement but the trial judge awarded him £2,000.00.  He appealed the damages assessment to a  higher Court and was awarded £25,000.00.

While the decisions of English Courts are considered influential albeit not binding, in Ireland most of the case law has centred on the misuse of celebrity images to imply an endorsement of a commercial good or service. This is dealt with by the courts, in general under the normal rules covering ‘passing off’. So, if the subject’s image might be worth money if used in an advertisement or as part of a product endorsement, they have a right to protect the income flowing from that as a property right.

There is no specific legislation in Ireland governing the rights of sportsmen and woman to protect their image.  So our sporting hero’s cannot for instance register their image as a trademark.   

All they can do is take an action for ‘passing off’ against the party who uses their image for profit without their consent. To succeed in a ‘passing off’ action, sports personalities need to show that they actively exploit their reputation by licensing their likeness in relation to a range of goods and services. This must be to such an extent that the other party’s activity would cause consumers to believe that the sports personality had authorised the use of his name and likeness for the kind of product concerned.

That involves bringing an action before the High Court, which is inevitably slow and costly.  In considering such a legal step, the athlete should scrutinise the value of such a product endorsement.  So the cost of product endorsement for the likes of Brian O’Driscoll might amount to €200,000.00  would make a High Court action a worthwhile exercise a similar action by Willie “Big Bang” Casey may not.  The damages are likely to be assessed on the basis of usual product endorsement payments for that athlete.

What if Shay Given  is photographed outside the local supermarket without his knowledge and that image is spread all over those supermarkets in Donegal?  Highly unlikely but if so, Given could not only rely on the tort of passing off by Tesco but in addition can rely on his constitutional right to privacy as well as the European Convention on Human Rights. Therefore the private interactions of a person,  even in a public place,  may be covered by the right to privacy. However, once the interactions of an individual become public, on the podium at the European Championships, the right to privacy is lost.

The value of a high profile sports star’s images rights  is highlighted by the current spat between Manchester City and Ivory Coast defender,  Kolo Toure.  City not satisfied to impose a £500,000.00 fine on the £120,000.00-a-week star for his failed drug test, they have quite rightly recognised that to strip him of his image rights, which are estimated to be worth £1.5m a year, might hurt his pocket more.   The ante has been upped to such an extent by the move that Toure is considering his future in the club.

The idea of a player being stripped of right to income from their image rights in such an arbitrary manner seems to fly in the face of the rights of the individual.  But on closer analysis the only means that Manchester City or Leinster or The Republic of Ireland football team for that matter could wrestle such control from a player is by contract.  Most professional sports people playing for a professional club or team sign away their control over the image rights a part of their contract with that club or team.  The contract gives control.  Let the players and press beware.

*Larry Fenelon is a partner in Leman Solicitors,  Dublin.  Leman Solicitors is the Irish Sports Law Firm of the Year 2011. www.leman.ie

Disclaimer

This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Leman Solicitors for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.