Mar 23, 2015

Judges from New Zealand X Factor sacked over IP rant

Two of the Judges from the New Zealand version of X Factor have been sacked after making harsh comments directed at a contestant about his imitation of another person's 'style'.

The aftermath followed after the show was recorded on Saturday 14 March. One of the contestants, Joe Irvine, sang a Michael Buble number dressed in a suit and tie with his hair slicked back. When he finished, Natalia Kills, who was sitting as a Judge laid into the performer telling him that as someone who valued intellectual property, she was disgusted at how much he had copied her husband's style her husband being Willy Moon who was also a Judge on the show and who supported Natalia's comments.

The producers deemed the comments to be a form of bullying and sacked the pair. Was this a fair reaction or did the Judges make a valid point? In order to establish the answer, it is really a question of considering if and how a person's style or image can be protected.

Imitating a person's style may be deemed as an infringement of a person's rights but it is wholly dependent on which country you are in. In some states of the USA, for example, they accept the Celebrities Rights Act which provides an individual with rights to control the commercial use of their image or likeness. However, in the UK and indeed across most member states, there is no specific right to protect your image.

This was confirmed in the recent High Court case where Rihanna sued Topshop over the use of her image on t-shirts, as reported on 22 January 2015. Mr Justice Birss stated that there was no such thing as a general right by a famous person to control reproduction of their image. So what rights do you have in the UK?

In terms of style, there is no protection available despite being a creative expression of an idea. However, where there has been commercial use of a person's image, the main form of protection falls under the law of tort in particular the tort of passing off.

If a vendor uses a celebrity's image to endorse products without obtaining the consent of the individual, this would constitute an act of passing off and action can be taken. In order for the action to succeed, the individual must show that the endorsement of the product has had a significant impact on their reputation and goodwill. They must also show that the endorsement presented a false representation to the general public who believed that the product was recommended or approved by the celebrity. This was proven by Rihanna in the Topshop case who went on to sue Topshop for £3.3million.

Having considered the above, it would appear that the producers of the X Factor were justified in their decision. Besides, we've all seen the suit and tie, slicked hair combination numerous times. To conclude that this style is an infringement of one individual's 'image' is absurd.

in: Copyright, News, Passing Off

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