Image Rights of Celebrities in the Digital Era: Is There a Need for the Right of Publicity in Ireland?

Abstract

Advertisers utilize the fame of celebrities to sell products to consumers. This is effective because celebrities are embodiments or encodings of certain values and aspirations. These encodings are done by the consumers/audiences. While movie-stars depict glamour, sports stars depict strength and determination to excel. These encoded meanings of celebrities can also be recoded or re-interpreted by the consumers/audience as a form of political or artistic expression. In the United States, celebrities can challenge the unauthorized use of their image rights by relying on the right of publicity but this is balanced with a First Amendment defence to protect ‘political-speech’. Developments in Australia and the United Kingdom, where the right of publicity is not recognised, indicates the willingness of the courts to extend the common law action of passing off to protect celebrities against unauthorised use of their images. It is unclear what position Irish courts will take if they are faced with this type of problem. While passing off may protect image rights, it fails to take into account the roles played by the audience in the encoding and recoding of celebrities which is recognised under the First Amendment defence in the US. Therefore, care must be taken in extending passing off to avoid creating a ‘chilling effect’ on political and artistic expressions.