Topshop, the clothing emporium that was some kind of mecca for my friends when we were teenagers but never, ever had clothes to fit me, has just lost a multi-million pound court case to Rihanna, who accused it of 'passing off' a t-shirt with her mug on the front of it.
The t-shirt in question was a square-cut sleeveless jobby called the 'Rihanna Tank' by Topshop and it featured an image of her with her hair piled on top of her head. The original photo was shot during the video shoot for We Found Love. Yes, that's right, it was taken during 'that' shoot when a Northern Irish farmer politely told her to put on some more clothes if she wanted to film on his land. (What a contentious song it have proved to be.) Topshop then licensed it from the photographer, printed it on a bundle of t-shirts without Rinhanna's approval, and found themselves with a hefty legal bill.
There doesn't seem to have been any issue about the actual photo, just the way that Topshop used it. So what was the problem? To be proved as 'passing off,' the accusation needs to stand three tests:
- The claimant (in this case Rihanna) needs to have established a reputation (she's got one of those)
- The defendant (here, Topshop) needs to have misled the public (that is, caused them to think Rihanna endorsed the t-shirt)
- Some form of 'damage' (in this case to Rihanna's reputation) needs to have occurred.
The judge, Mr Justice Birss, thought that Topshop was responsible for passing off. However, he was quite clear that there is 'no such thing as a general right by a famous person to control the reproduction of their image' and that the photo didn't breach Rihanna's privacy.
My not-legally-trained and using-common-sense reading of the judgement is that the image Topshop used was too similar to the images that appeared on the album artwork for Talk that Talk. As a consequence some poor misguided souls who actually want to go around wearing a t-shirt with a picture of Rihanna on it might have bought it thinking that she had some how approved it and it was potentially related to the album.
With respect to Rihanna, the judge ruled that this could be deemed damaging to her 'goodwill' and reputation in the fashion spehere. Obviously Rihanna needs to protect her reputation in the fashion sphere now that she has endorsed a range of clothes at Topshop-rival River Island. Make sense now?
Do we have to start worrying about people suing the pants off of photographers in an attempt to protect their images? Probably not yet. The judge was quite clear about that.