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Using celebrities in advertising

03 September 2009

Advertising often uses a reference to celebrity to create an impact. Sometimes this is done by agreement, and in return for a substantial fee, but sometimes, it is done without permission. Although this may not breach any laws or regulations, it should only be done after a careful analysis of all the risks.

The United Kingdom does not have statutory privacy or personality laws. Privacy rights need little explanation. Personality rights (also known as publicity rights) protect living individuals (and sometimes their estates) from unauthorised commercial exploitation of their celebrity, whether by means of references to their name, likeness, voice, signature or any other reference to them. Instead, the law in the UK comprises of a plethora of different common law and statutory rights which combine to create a complex matrix. In recent years, these laws have been supplemented by new additions such as the Human Rights Act 1998 and the Data Protection Act 1998. Furthermore, there are additional controls laid down by various self-regulatory codes.

How does the law of “passing off” apply?

Passing off is the closest that English law gets to preventing the unauthorised commercial exploitation of celebrity, whether by name, likeness, voice, signature or other reference. Passing off is a ‘tort’, i.e. an act which is wrong in civil law, rather than criminal law. There are three elements to passing off: goodwill, misrepresentation and damage...

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