In ‘Elle: Super Business Model’, we see that Elle Macpherson is acutely aware of the value of her image.
Paul McCartney once said that when the Beatles were becoming popular, he had no idea it was possible to own a song. Today, though, legally owning songs can elevate people into multimillionaire status.
In the commercial world, anything with value can be exploited, subject to the limits of the law. Where those limits are drawn is often a matter of debate. A developing area of concern is the right of celebrities to enjoy a reasonable expectation of privacy against published use of their images, and to have intellectual property in their own images.
Elle recently won a Press Complaints Commission (PCC) ruling against the magazine HELLO! because it published pictures of her sunbathing on a beach on Mustique. The photos showed her in a bikini. She asserted that she was staying in a private house with a private beach, and said that she had chosen the location in order to stay out of the public eye. The PCC accepted that, whether the beach was technically a public or private place, she had made an effort to find a private holiday spot. The PCC did not believe that that HELLO! had made a convincing case to warrant publication. So it ruled against the magazine.
Doug Pickett, of Wilmington, North Carolina, is not a household name but millions of people in many countries will recognise him. It was his face, on an advert a few years ago for a Ralph Lauren fragrance, which a great many people assumed was that of Leonardo DiCaprio. The advert did not attract litigation but the debate on how far the law should protect personal images became enlivened.
The former world-record holding 10,000m athlete, David Bedford, threatened legal action against the company responsible for the “118 118” television adverts. He claimed that the advert traded on his distinct persona including his former hairstyle, moustache and skimpy shorts. He discontinued his action but his complaint to the telecom regulator Ofcom was upheld and the company agreed not to use his image any more.
Cases alleging misuse of a real photograph of the claimant go back to 1901 but a recent development is the allegation of defamation through the photograph of a "look-alike". In 2001, the High Court rejected the claim of a woman whose friends and family were horrified to see what they thought was a photograph of her in a Sunday paper posing in an advert for a pornographic website. The photographed woman was her double. Following the human rights legal requirement to permit freedom of expression unless a restriction is "necessary in a democratic society", Mr Justice Moreland ruled that "it would impose an impossible burden on a publisher if he were required to check if the true picture of someone resembled someone else who because of the context of the picture was defamed". It would, in effect, bring an end to newspaper photos of riots, or of anyone involved in criminal cases, because all look-alikes might sue for defamation.