Guernsey bids for global lead as it prepares to pass image rights legislation
Jonathan Riley, partner, Lawrence Graham
The Image Rights (Bailiwick of Guernsey) Ordinance 2012 was published on 19 October. The draft is expected to be approved at the States Meeting on 28 November and come into effect on 3 December.
Image rights, which centre around the protection and exploitation of an individual’s name and image, have become increasingly relevant because of the commercial value of the sponsorship, merchandising and product endorsement deals that exploit these rights.
In many cases, the income that personalities can derive from exploiting their image rights can exceed the remuneration they receive from their professional activities.
No country in the world has introduced legislation specifically for the protection of image rights. Levels of protection vary around the world, but the UK is not unusual in its image rights protection being based on a patchwork of IP and related rights including trademarks, false endorsement, confidentiality and human rights.
IP rights typically operate at a national level. Patents and trademarks, for example, are registered at national registries and grant legal rights in those countries, but a granted patent or trademark in one country does not prevent its unauthorised use in another unless and until those rights are also registered in that country.
Similarly, copyright law operates at a national level and it requires the additional layer of a series of international conventions for countries to grant reciprocal rights of protection.
Guernsey covers an area of less than 30 square miles and has a population of 65,000. It is proud of its low crime rate – last year’s figure for image rights theft is believed to be zero.
This begs the question, why would Guernsey introduce legislation that no other country has, to legislate for something that does not seem to be a problem?
The answer is that Guernsey is seeking to position itself among world leaders in innovative IP legislation, recognising the commercial value of image rights and seeking to create an economic advantage from its legislative environment by providing for image rights law in advance of what it sees as competitor jurisdictions.
The image rights legislation is bound to attract attention and, in terms of the declared aim of Guernsey’s Ministry of Commerce and Employment to provide an image rights law in advance of competitor jurisdictions, it has certainly met that objective.
Other countries will now watch with interest whether Guernsey can turn the commercial value of image rights into an economic opportunity.
The efficacy of infringement remedies may prove to be a sideshow in that respect, and the real question is whether the recognition of image rights in law will cement their status and value as an asset class in a way that attracts business to Guernsey.
Of course, if the answer is yes, while everyone else has been watching, Guernsey will have gained a global head start.
Lawrence Graham senior associate Vanessa de Froberville assisted with this article