Last year Pauline Hanson delivered the much anticipated sequel to her satirical cartoon of Australian icons, Bluey and Robert Irwin. Irwin reportedly threatened to sue Hanson for defamation for the first instalment, but regardless of the outcome – it’s a reminder to carefully consider the risks of using a person’s likeness without their consent.
This post explores use of likeness (and its relation to publicity rights) and its risks in Australia.
Why is it important?
Businesses, more than ever, should be mindful of the rights and obligations around using a person’s likeness given the prevalence of ‘remix culture’, user-generated content (UGC) and ‘influencer’ marketing strategies. We expect the Australian market will also see a rise in the use of likenesses of Australian sportspersons and celebrities for endorsements as the 2032 Brisbane Olympics approach.
Producer and DJ ‘Fred again..’ is a great case study of how using samples of videos of his own audience (with consent) – dancing to his music, at his performances – positively boosts engagement and public reception.
Conversely, this can go wrong when businesses repurpose UGC without consent in their marketing strategies – for example, when the user has no idea they’re promoting a product they’ve never used or don’t ethically align with (see the controversy following Kelly Clarkson’s weight loss endorsement that was actually AI generated without her consent).
What are publicity rights?
Australian law does not expressly prohibit a person using another’s likeness without consent – known as ‘publicity rights’ or ‘personality rights’. Certain European countries, and Canadian and American states recognise publicity rights, but it is a common misconception that Australia does too.
The definition varies jurisdictionally, but publicity rights can be broadly summarised as a person’s right to prevent others from using elements of their individuality without their consent for commercial benefit. This can include their name, likeness (including through photos or videos), nicknames, pseudonyms or signature.[1]
Publicity rights aren’t recognised internationally as an intellectual property right, but they’re often associated with it because they typically attract considerations of copyright and trade marks, as well as consumer law and passing off, privacy and defamation.
Use of likeness in Australia
It’s important for businesses to know their rights and obligations if they wish to use a person’s likeness in relation to a product, service or marketing campaign. Businesses should consider the need to obtain consent before doing so – without appropriate consent, there is a risk that an individual could seek remedies for such unauthorised use. We’ve set out some of the liability risks in Australia and relevant recommendations below.
Contract
Contract is the best way to know what rights a business has when using a person’s likeness. For example:
- conditions of entry for performance venues may acknowledge an artist’s ownership of their performance, and prohibit patrons from reproducing the performance (including by photos or video) without their prior consent;
- businesses which engage influencers or TV personalities for a collaboration or as a brand ambassador may enter into an agreement to use elements of their likeness, like their image in a campaign or their signature on product packaging. This agreement may limit how the business can use the likeness by, for example, identifying which products the business can reproduce the signature on and limiting the time frame for use;
- at the other end of the chain, distributors of content that may contain a third party’s likeness often have terms of use which require suppliers or sellers to ensure they have any necessary consents to use the likeness and that the use does not infringe another person’s publicity rights, or comply with a policy recognising those publicity rights.
Before entering a contract to use someone’s likeness, it is critical to consider the limits (if any) of consent – meaning the terms should reflect any objections to endorsements of certain products, services or circumstances. After signing, businesses should always check whether the intended use aligns with the consent given, otherwise they may need fresh consent.
Intellectual property rights
At the outset you should ensure that you have the rights to use copyrighted material. However, permission from an image library may not be enough. Some individuals opt to register trade marks in respect of their names or other parts of their likeness, which they can then enforce to prevent unauthorised use of the protected element as a trade mark. [2] For example:
- Agatha Christie and Australian Olympian, Ian Thorpe, have registered trade marks in Australia for their signatures.
- Australian clothing designer Katie Taylor registered a trade mark for ‘Katie Perry’ (being the designer’s legal name at birth). Taylor sued American pop star Katy Perry for infringement of her trade mark (but was ultimately unsuccessful).
- Further afield, British media personality Rebekah Vardy registered a trade mark for ‘Wagatha Christie’, the nickname of her defamation dispute with Colleen Rooney – originally coined by comedian Dan Atkinson as a portmanteau of ‘WAG’ and ‘Agatha Christie’.
- In the sporting arena we helped Nathan Lyon register ‘Nice Garry’[5] as a trade mark after the viral memes that followed Matthew Wade’s regular encouragement of Nathan Lyon from behind the stumps.
If a business wishes to use an individual’s name or element of their likeness in relation to a product or service or for promotional purposes, it should carry out searches to identify any trade mark registrations associated with that individual and, if necessary, seek a licence to use it.
Australian Consumer Law
Individuals may seek to protect against unauthorised use of their likeness by establishing that a person has engaged in false or misleading representations in trade or commerce or misleading or deceptive conduct under the ACL.[6] This may include false or misleading representations by a person that:
- they sell or make another person’s goods; or
- their goods have the same quality as another person’s;
- the two people are commercially connected; or
- the other person sponsors, approves of, or is affiliated with the first person’s goods.[7]
Since these actions don’t require proof of damage, they can be easier to prove than their common-law alternative of ‘passing off’ (see section below). The most famous case in Australia is Grosby Shoes’ misappropriation of the Crocodile Dundee character to advertise its shoes. [8] Businesses should be careful they do not breach the ACL in this way – not only because it creates consumer distrust but also due to the risk of an ACCC investigation into the conduct.
Passing off
Individuals may also protect their proprietary interest in maintaining their reputation or goodwill via an action in the tort of passing off. Passing off claims are sometimes argued in the alternative to actions under the ACL. Passing off may be established by proving:
- the plaintiff has a certain reputation or goodwill;
- the defendant engaged in deceptive conduct as to the way they present their goods or services; and
- resultant actual or threatened damage to the plaintiff.
Damage may include proof of monetary damage, or damage to reputation or goodwill.
Rihanna famously defended against Topshop’s use of her likeness on this basis in 2013 in the UK. The Court found Topshop had ‘passed off’ their clothing as approved by Rihanna by reproducing her face on t-shirts without her consent. See our blog post on this here. Some factors that were key to establishing Rihanna’s claim were her previous paid collaborations with Topshop and status as a fashion icon.
While interesting, these factors have not been formally considered in Australian case law, and are not the sole basis for establishing a claim for passing off. Businesses could still be liable for passing off even if the individual whose likeness is used only has a reputation or goodwill in a smaller section of the community.
Defamation
Individuals can also defend use of their likeness with an action in defamation (like Robert Irwin).
Defamation actions require the Court to find that the matter communicated was false and caused a group of ordinary reasonable persons to think less of the applicant. This limits the success of defamation actions in some circumstances, given it can be difficult to establish that use of likeness conveyed a falsehood.
While Irwin’s defamation claim didn’t eventuate, it’s interesting to anticipate the defences Hanson may have argued – for example, a defence of public interest, or that the elements were not established because the ordinary person would not think less of Irwin by viewing the satirical content.
Either way, this kind of liability can be easily avoided by obtaining consent beforehand.
Privacy
Privacy rights can also prevent unauthorised use of likeness. English privacy law has extended the principles of breach of confidence to create the tort of misuse of private information, which has been used to protect celebrities against paparazzi from taking and publishing unauthorised photographs.[9]
An Australian equivalent statutory tort under the Privacy Act 1988 (Cth) was introduced late last year. There’s currently no judicial consideration of this new tort, but English case law may give insight into how it may develop.
Businesses should watch this space – if Australian law develops in line with England, circumstances in which you can use a person’s likeness (or information) without consent may become increasingly limited. This could create roadblocks for businesses that rely on paparazzi photographs or videos, like media outlets. See our Insight here for more information.
Where to from here?
By being on the front foot, businesses and individuals alike can avoid the legal risks, as well as ethical and commercial risks of using someone’s likeness without consent.
To identify any liability risks, we recommend asking:
- for form of content: is there a risk of using a person’s likeness? Some forms might be obvious, like photographs, but others (like names) could more subtle.
- do any intellectual property rights apply?
- do any contractual terms apply to the capture, use or reproduction of likeness? For example, any venue conditions of entry, or manufacturer or marketplace terms.
- has consent already been obtained, and if so, what are the limits? Is fresh consent needed?
Featured image: ‘Red Carpet Event’ by Stockcake, public domain, AI Generated (cropped).
[1] ‘Right of Publicity’, International Trademark Association (web page) <https://www.inta.org/topics/right-of-publicity/>.
[2] See, for example, Trade Marks Act 1995 (Cth), s 126.
[3] Australian trade mark registration no. 1583775.
[4] Australian trade mark registration no. 978096.
[5] Australian trade mark registration no. 1817881.
[6] ACL, s 18, 29.
[7] ACL, s 29.
[8] Pacific Dunlop Ltd v Hogan (1989) 87 ALR 14.
[9] For example, see: Campbell v MGN Ltd [2004] 1 AC 457; the Douglas v Hello! Ltd series of litigation.