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December 21, 2023

A New Concept of Intellectual Property: What is Image Rights?

Image Rights, also known as right of publicity, refers to a person’s characteristic features such as name, figure, impression, likeness, images, name, voice, gestures, slogan or signature[1] (“Image Rights”). As these distinctive features are highly associated with the personality rights, Image Rights should be interpreted under two legal disciplines: personality rights and intellectual property rights.

Image Rights draws attention mostly for transfer agreements of popular sports fields, especially football. Since the popularity of football players results in high-paid marketing campaigns which bring more money compared to transfer fees, the issue related to Image Rights and the income raise up from them is a remarkable discussion topic lately. While the issues arising from Image Rights are multiple in other countries, in Turkey Image Rights are not stressed as an issue and it is not even mentioned in the most of the transfer agreements signed. The term of Image Rights only mentioned few times for the transfer of worldwide known players to Turkish football clubs. Although Image Rights have created an economic value all over the world, the concept of Image Rights is not actively used in the Turkish league yet.

A football player’s name, likeness and characteristic qualifications that it represents are under the scope of Image Rights and the commercial use of such is also covered by Image Rights. In this regard, in some countries, many football clubs and players sign agreements regarding the income arising from Image Rights. In these agreements, Image Rights can be transferred to the player’s football club and the player may be get an Image Right payment or the player solely reserves the income himself. In fact, since the Image Rights must be transferred separately in the transfer of a sportsman whose Image Rights are in one club to another club, these transfer procedures are also expected. With the raising importance of popularity, many club already included Image Rights to transfer agreements.[2]

When the income of Image Rights is considered, it is on the benefit of the holder to not transfer Image Rights. The negotiation of the transfer of Image Rights should include the extent which the club will be able to exploit the owner’s Image Rights in a personal as well as club capacity.  Club capacity means the representation or use of the player’s Image Rights under the framework of the club’s while personal capacity means the separate appearance of the player without any sign of the club. To avoid the confusion, the scope related to abovementioned terms should be discussed in detail in the transfer agreements.

Many local and global brands prefer sportsmen for their marketing campaigns and the budget reserved for the sportsmen is dramatically high. The fact that the income from Image Rights can even exceed the transfer payments underlines the importance of the issue. Image Rights commonly tends to be associated with trademark rights however, Image Rights refers to a genuine type of intellectual property and it has substantial differences compared to trademark law. While the main goal of trademark registration is the protection of the goods and services which will be sold under the registered trademark, Image Rights aims to protect naturally evolved right of privacy. Moreover, only the specifically registered goods and services are protected with a trademark registration while Image Right’s extent is determined with a person’s specifications. Because Image Right protection is not regulated separately and particularly in our legislation yet, a lot of sportsmen registers him/his name or logo as trademark.

In Turkish Law only the details of the income arising from Image Rights is regulated within that scope and it is specified that the income arising from Image Rights are also subject to income tax.

Similarly, there is not any unanimous approach for Image Rights in EU countries. The British tort law determines the infringement of Image Rights by passing off and breach of confidence.[3] The other EU countries such as Germany[4] recognizes Image Rights in different concepts case by case however the only regulation by means of a legislation is in the Guernsey Islands. Guernsey Island introduced a legal system for the protection of Image Rights. It is allowed to create special register of such rights and allowing protection of moral means, which is explicitly defined.[5]

Image Rights gained more attention in the intellectual property area since it is also important with its conventional and economic value. The financial benefits of Image Rights should be secured with IP protection since the economic importance will keep rising in further. Additionally, Image Rights should be analyzed carefully since it overlaps with the personality rights. To avoid the ambiguity Image Rights should be identified as a separate IP right and should be protected while considering its relation with personality rights.  Moreover, the football players and their agencies should take action to protect player’s Image Rights with the current possible protection under IP law and the clubs should consider to grow a rapid strategy to not lose profit while adding value to the player’s image with the club’s reputation. Since most of the professional clubs consider the popularity of the football player additional to player’s capacity, Image Rights will become the focus subject of transfers in near future.

[1] Image Rights (Bailiwick of Guernsey) Ordinance, 2012, Art. 3

[2] Understanding Sports Image Rights, Blackshaw, international sports lawyer, academic, author and member of the Court of Arbitration for Sport, WIPO (https://www.wipo.int/ip-outreach/en/ipday/2019/understanding_sports_image_rights.html accessed on 06.12.2021)

[3] Douglas v Hello [2003] EWHC 786 (Ch); [2003] 3 All ER 996; [2003] EMLR 641

[4] Kahn v Electronic Arts GmbH, unreported, 25 April 2003

[5] http://ipo.guernseyregistry.com/article/103037/What-are-Image-Rights (accessed on 06.12.2021)

Authors

Yasef Taş

Yasef Taş

Lawyer