Rihanna’s passing off claim against Topshop succeedsPrint publication
The High Court has held that sales of T-shirts bearing a photograph of the popstar Rihanna, at Topshop, without her approval, constituted passing off.
The case  centred on the sale by Topshop of T-shirts bearing an image of the popstar Rihanna. Topshop had a licence from the photographer to use the image but did not have permission from Rihanna herself. Rihanna argued that the sales of the T-shirts without her consent constituted passing off. She maintained that the sales would be damaging to her goodwill, particularly given her associations with the fashion world.
The case was not about image rights – a concept not recognised in any distinct, free-standing way in English law – nor was it about privacy or about copyright. It was solely about passing off and the three elements needed to substantiate a claim for passing off, namely:
- a goodwill or reputation attached to the relevant goods or services
- a misrepresentation by the defendant to the public (whether or not intentional) leading, or likely to lead, the public to believe that the goods or services offered by him are those of the claimant
- damage to the claimant, arising from the erroneous belief that the source of the defendant’s goods or services is the same as those offered by the claimant.
Judgment in the case was given by His Honour Judge Birss QC. He referred to the High Court decision in Irvine v Talksport  in which it had been held that there was nothing in law to prevent a case of passing off being made out in a false endorsement case. This case was not a false endorsement case but a merchandising case, although the legal principles were the same in each case.
On the question of goodwill, the judge accepted that Rihanna was a “style icon”, who was associated with fashionable clothing. The judge also accepted that there was an overlap between the music and fashion industries and Rihanna had entered into agreements with Gucci and Armani regarding clothes promotion and an agreement to design clothing for River Island. In short, she had “ample goodwill to succeed in a passing off action of this kind”.
In order to establish misrepresentation it is necessary to show confusion as to trade origin – this was not the same thing as wanting simply to buy an image of the popstar. The judge considered that, to prospective purchasers, the nature of the image was a fairly strong suggestion that the product was authorised by Rihanna. Of particular importance was the public perception of links between Topshop and famous stars in general, and Rihanna in particular, which would enhance the likelihood of the public believing that the T-shirts were authorised by Rihanna.
Birss J accepted that the public will not always assume that the appearance of an image of a popstar on a garment necessarily means that the product is authorised, but in this case Topshop had made a concerted effort to associate themselves with Rihanna. For example, they had communicated to the public when the singer wore one of their items or visited one of their stores. In this particular case, the image had been taken from the video of Rihanna’s single, “We found love”, and could be assumed to be associated with the marketing campaign for that record. The assumption that the T-shirt was authorised by Rihanna would be part of what would motivate her fans to buy the product.
On the third element needed to succeed in a passing off claim – damage – the Judge stated that if a substantial number of purchasers were likely to buy the T-shirt under the false impression that it was authorised by Rihanna, then this would clearly be damaging to her goodwill as it constituted sales that were lost to her merchandising business and also amounted to a loss of control over her reputation in the fashion industry. It was immaterial that the garment was a high quality product as it was for Rihanna, not Topshop, to decide which garments she wanted to endorse.
Points to consider
As noted earlier there is in English law no free standing general concept of “image rights” protecting against the reproduction of a person’s image. However, the case does show that there may be an avenue available to celebrities to protect their image, through the long-established tort of passing off where an image from a film, video or other publicity shoot appears on a garment creating an expectation that is authorised promotional merchandise. It will not be available in every case but will depend on the facts of the particular case. As His Honour Judge Birss QC put it:
“The mere sale by a trader of a t-shirt bearing an image of a famous person is not, without more, an act of passing off. However, the sale of this image of this person on this garment by this shop in these circumstances is a different matter”.
 Robyn Rihanna Fenty and others v Arcadia Group Brands Ltd (t/a Topshop) & Anor
  FSR 60