Taking on girl power in court

Roger Pearson looks at how the Spice Girls have so far failed in their bid to prevent an Italian company using their photographs. The Spice Girls are currently involved, directly and indirectly, in two pieces of litigation at the High Court.

As reported on this page (The Lawyer, 10 June), solicitor Ian Clifford has launched an action claiming he gave up his job at the Simkins Partnership to devote his time to managing Richard Stannard and Matthew Rowbottom, the writers of the band's hit Wannabe.

And the girls have now entered the legal arena in their own right. They have taken their case to the Chancery Division in a bid to stop an Italian company distributing a sticker album with their photographs on it, claiming that the product would harm sales of their own forthcoming product.

Senior litigation partner and intellectual property specialist at Titmuss Sainer Dechert, Andrew Hearn, was called in at the last minute by the Italian company, Panini, in order to ward off a ban on the album.

What will happen next in the case remains to be seen, but so far Mr Justice Lightman has refused an injunction. In a ruling that intellectual property lawyers at Titmuss Sainer Dechert describe as "significant", he ruled that the Spice Girls are not entitled to a court order, at least not on an interlocutory basis, to prevent others from using photographs of them for a sticker album for which they did not give their permission.

The judgment is one which is seen to reinforce the principle that no person has a right to prevent photographs of himself or herself being used without permission.

Counsel for the girls, James Mellor, who was arguing for an immediate ban on distribution of the album, said that fans would view it as an official licensed product of the group and that it was important that the girls controlled their merchandise. There was, he argued, only room for one such product on the market. He said they would not, however, object to any product bearing their photograph being marked "unofficial".

The judge said that he was far from satisfied that members of the public would be influenced into not buying the album if it contained "a disavowal of authenticity from the publishers." Despite Mellor's argument that refusal of an injunction would open the way for others to follow in Panini's footsteps, he said: "Whether it is official or not is of no relevance to the purchaser."

For Panini, John Baldwin QC argued that the case was "a storm in a teacup" and that the marketplace was "inundated" with Spice Girls products.

He denied that the girls would suffer irreparable damage from distribution of the Panini stickers and added that the band did not have any agreement relating to a sticker album of their own.

Hearn says: "The decision follows a long line of similar precedents relating to memorabilia and merchandise of famous personalities. The fact is that under English law there is no inherent right to restrict the use that can be made of a photograph provided that it was not obtained by means of a breach of confidence or an infringement of copyright."

He stresses that further action is still on the cards. Although the offer has not yet been taken up, the judge has offered the Spice Girls the opportunity of a full trial within two months.