A photograph of a famous athlete on a t-shirt. A tote bag featuring a well-known actor. A coffee mug bearing the likeness of a popular influencer.
Celebrity-driven merchandise has become increasingly commonplace, particularly in an era where online design tools, print-on-demand services and readily available images make it easy to create products featuring recognisable public figures.
What many businesses fail to appreciate, however, is that a celebrity’s image is rarely just an image. It is often a collection of valuable intellectual property rights, commercial interests and personality rights that may belong to multiple parties and attract significant legal protection. The fact that an image is publicly available online does not mean it can be freely reproduced and sold on merchandise.
Celebrity Merchandising Is Big Business
A celebrity’s name, likeness and reputation can carry substantial commercial value. Global celebrities often generate significant revenue through endorsements, sponsorships, licensing arrangements and official merchandise.
The commercial attraction of celebrity merchandise is obvious. Consumers may be more inclined to purchase products associated with a famous individual, particularly where that individual has a strong public profile or devoted fan base.
However, it is precisely this commercial value that gives rise to legal risk.
When a business uses a celebrity’s image to sell products, questions inevitably arise regarding who owns the rights associated with that image and whether appropriate permissions have been obtained.
More Than One Right May Be Involved
One of the most common misconceptions is that only the celebrity’s consent is required.
In reality, a single image may involve several overlapping rights.
The photograph itself may be protected by copyright. The celebrity’s name may be protected as a registered trade mark. The celebrity may have enforceable personality or image rights. An artistic adaptation of the photograph may attract separate copyright protection. In some cases, additional rights may exist in logos, signatures, slogans or other branding elements appearing in or alongside the image.
As a result, obtaining permission from one rights holder may not necessarily resolve all legal concerns.
The Copyright Trap
Copyright is frequently overlooked when businesses source images from the internet.
An image appearing on social media, a fan page, an online marketplace or an image-sharing platform is not automatically in the public domain. Copyright may still subsist in the photograph, artwork or graphic design, regardless of how widely it has been circulated online.
This creates a significant risk for businesses that download images and reproduce them on merchandise without investigating their origin.
The position becomes even more complicated where an image has been digitally altered, stylised or converted into an illustration. Modifying an image does not necessarily eliminate copyright concerns if the new work remains substantially derived from the original.
In many cases, the copyright owner may not be the celebrity at all, but rather a photographer, design studio, agency or artist.
Personality and Image Rights
South African law recognises the protection of a person’s identity and image through common-law personality rights.
Although South Africa does not have a dedicated image-rights statute, courts have recognised that the unauthorised commercial use of a person’s image may infringe their identity rights where it creates the impression that the individual has endorsed, approved or is otherwise associated with a product or service.
This principle is particularly relevant in the merchandising context.
A celebrity may object to the unauthorised commercial exploitation of their identity even where no trade mark registration exists and even where the image itself does not infringe copyright.
The key issue is often whether the person’s reputation or identity is being commercially appropriated without consent.
Trade Marks Are Not Just Logos
When people think about trade marks, they often think about company logos and brand names.
However, celebrity names, signatures, stage names and even aspects of a celebrity’s public persona may be protected through trade mark registrations. South African trade mark law permits protection for various forms of branding capable of distinguishing goods or services.
A business that places a celebrity’s registered name on clothing, accessories or promotional products may therefore face trade mark infringement claims in addition to any copyright or image-rights concerns.
Importantly, the absence of a trade mark registration does not necessarily mean that the proposed use is risk-free. Other causes of action may still be available to the rights holder.
Passing Off and False Endorsement
Another significant risk arises where consumers may be misled into believing that merchandise has been authorised, licensed or endorsed by the celebrity.
This is commonly referred to as passing off.
Even without an explicit statement that the products are “official”, the overall presentation of the merchandise may suggest some commercial connection between the celebrity and the product.
The stronger the celebrity’s reputation, the greater the possibility that consumers may assume that merchandise bearing their image has been authorised.
For this reason, businesses should carefully consider not only the image itself but also the wider context in which the merchandise will be marketed and sold.
The Rise of Influencers and Digital Personalities
These principles are no longer confined to movie stars, athletes and musicians.
Influencers, content creators, esports personalities and social media figures increasingly monetise their names and likenesses through licensing and endorsement arrangements. The commercial value associated with a public persona is often substantial, regardless of whether the individual achieved fame through traditional entertainment channels.
As the creator economy continues to grow, so too is the likelihood that businesses will encounter claims relating to the unauthorised commercial use of a person’s image, name or online identity.
Managing the Risk
Businesses considering celebrity-inspired merchandise should conduct a proper rights-clearance exercise before production begins.
Key questions include:
- Who owns the copyright in the image?
- Are any trade marks implicated?
- Does the use create an impression of endorsement or sponsorship?
- Does the celebrity have enforceable personality or image rights?
- Are there any additional rights in logos, artwork, signatures or branding elements?
- Have all necessary permissions been obtained?
Where uncertainty exists, obtaining legal advice before launch is almost always less costly than defending infringement proceedings after products have entered the market.
Conclusion
Celebrity images may be easy to find, but the rights associated with them are rarely simple.
The commercial value attached to fame means that celebrity names, images and reputations are often protected through a combination of copyright, trade mark rights, personality rights and common-law remedies. Businesses that use celebrity imagery on merchandise without conducting a proper rights assessment may find themselves facing legal challenges from a range of rights holders, not just the celebrity concerned.
In an increasingly image-driven marketplace, the safest assumption is that a famous face is not free to use simply because it is visible online. Before placing a celebrity on a product, businesses should ensure that they understand exactly whose rights are involved and whether those rights have been cleared.
When it comes to celebrity merchandise, the biggest risk is often not the image you can see, but the rights you cannot.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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