The Royal Wedding is an (almost) once in a lifetime event. In fact, it’s been 30 years since the last one, and even in the land of rebel colonies, it’s gripping the attention of a majority of our nation’s tabloids, gossip columns and social media outlets. The Royal Wedding of Prince William and Kate Middleton takes place on April 29, and a large portion of the world will be watching. What will she wear? Who will the guests be? Will Prince Harry behave at the reception? And, most importantly, what kind of merchandise can we pick up to commemorate this momentous occasion?
The impending nuptials of the future King of England and his long faithful fiancée have spurred countless products honoring the occasion, from the traditional, like china and coins, to the not-so-traditional, like nail decals (http://tinyurl.com/4ge5ozr) and even “Crown Jewel Condoms of Distinction” (yes, condoms – http://tinyurl.com/439vwwr). It seems unlikely, perhaps impossible, that the Royal Family signed on the dotted line to allow for the likenesses of their most talked about couple to be used on the entire array of merchandise available. This sparked our interest in the Royal Couple’s rights of publicity or personality rights to halt the production and sale of these products. Do they have any?
Personality rights involve the right of an individual to control the commercial use of his or her name, image, likeness or other unequivocal aspects of one’s identity. In the United States, the right of publicity is grounded in state law, so the legal standards can vary. The typical elements to a right of publicity claim are that the defendant used the plaintiff’s name or likeness, that use was to the defendant’s own advantage, that the plaintiff did not consent to the use, and that the plaintiff suffered some kind of injury. Certain states will also look at whether the work is transformative. In most common law jurisdictions around the world, an actionable misrepresentation, usually covered under the tort of passing off, requires a suggestion that the plaintiff has endorsed or licensed the defendant’s products, or somehow can exercise control over those products. United States federal law, in Section 43(a) of the Lanham Act, also provides a cause of action if the merchandise creates a false designation of origin by using a celebrity’s likeness without permission.
English law lags a bit behind the United States in its protection of a public figure’s name and likeness. Judges are hesitant to interfere with free competition, and actions for passing off require a common field of activity. The standard seems analogous to the importance of analyzing the similarity of goods and services under U.S. Trademark law. Since, to our knowledge, the Royal Family and Ms. Middleton’s family are not engaged in the production of nail art or contraceptives, it seems unlikely that they would be able to stop these manufacturers.
While there have been reports of warnings issued to UK designers to not use Kate Middleton’s full name on a clothing design or clothing label and reports that Lord Chamberlain’s office (the senior official of the Royal Household) has issued guidelines as to which souvenirs are appropriate to commemorate the Royal Wedding, how much power do they have to completely stop production and sales on these goods, whether in the UK or abroad? The “Crown Jewel Condoms of Distinction” website points out that their products “are not supplied to, or approved by, Prince William of Wales, Catherine Middleton or any member of the Royal Family.” We suppose there is an argument that the Royal Wedding is a newsworthy occasion, and these products merely commemorate it as such, as opposed to implying an endorsement by Ms. Middleton or the Royal Family, but if you were a bride-to-be, how comfortable would you be with seeing your face on a box of condoms? Instead of a lawsuit, would you just laugh it off?
Do you have a question about protecting your rights? Perhaps The McHattie Law Firm can help.
(Abigail Nickerson)