Personality rights in the UK - Possible reform on the horizon to address AI-related challenges

Artificial Intelligence (AI)-related technologies, such as digital replicas (also known as ‘deepfakes’), present new challenges for personality rights (also known as ‘image rights’ or ‘publicity rights’). The use of AI to create digital replicas is an area of concern to the creative industries, in particular to actors and singers. To address these concerns, the UK Government is contemplating the introduction of a new type of intellectual property (IP) protection for personality in the future (in line with recent developments in the United States). In its consultation on copyright and AI (see here), which runs until 25 February 2025, the Government welcomes views on - among other things – whether the current legal framework remains fit for purpose, including whether individuals have sufficient control over their personality. The present article provides an overview of personality rights in the United Kingdom and looks at possible future developments in this area in view of the Government’s consultation.

A patchy legal framework

Personality rights, also known as ‘image rights’ or ‘publicity rights’, refer to the right of individuals to control the use of their name, image, likeness, or other personal attributes such as their nickname and signature.

Unlike jurisdictions with statutory provisions specifically addressing ‘personality rights’ or ‘image rights’ (including many EU countries, such as France and Germany), the UK does not have a codified legislation that explicitly protects such rights. Instead, individuals seeking to protect their personality must rely on a patchwork of causes of action, including those set out below. However, these causes of action offer varying levels of protection and are rarely considered sufficient.

Passing off

Passing off remains the most commonly used cause of action for protecting personality rights in the UK. This common law tort may be invoked to prevent the unauthorised commercial use of a celebrity’s name, image or likeness if it misrepresents a commercial connection or endorsement. The classic formulation of passing off was set out in Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491. To succeed in a passing off claim, a celebrity must establish the following three elements: (i) goodwill or reputation in his or her name, image or likeness; (ii) misrepresentation to the public by the defendant, so that the public are likely to believe that the defendant’s goods or services are endorsed by the claimant; (iii) damage suffered by the claimant.

A leading case in this area is Irvine v Talksport Ltd [2002] EWHC 367 (Ch), where Formula One driver Eddie Irvine successfully sued a radio station for using a doctored image of him to imply endorsement of their services. The court awarded Irvine £25,000 in damages. This was the first decision in the UK in which a passing off action succeeded in a false endorsement case.

Another leading case is Fenty v Arcadia Group Brands Ltd [2015] EWCA Civ 3, where singer Rihanna argued successfully that retailer Top Shop’s unauthorised use of her image on a T-shirt amounted to passing off. In the leading judgment, Kitchin LJ confirmed that under UK law there is no such thing as an ‘image right’. He held, “..setting out some basic principles. There is in English law no ‘image right’ or ‘character right’ which allows a celebrity to control the use of his or her name or image…” (paragraph 29). He added, “A celebrity seeking to control the use of his or her image must therefore rely upon some other cause of action such as breach of contract, breach of confidence, infringement of copyright or, as in this case, passing off” (paragraph 33).

If, for example, the likeness of a celebrity is used (without authorisation) in a deepfake to misrepresent to the public his or her endorsement of a product, service or brand in the UK, a passing off claim may be brought by that celebrity against the party misrepresenting such endorsement. However, in order to succeed in a passing off claim, the claimant will have to show the requisite goodwill and that not only has the defendant misrepresented the claimant’s endorsement (through the use of the deepfake), the defendant has also caused damage to the claimant as a consequence of such false endorsement. The outcome of a passing off claim is very fact-specific. If the celebrity is already in the business of endorsing products or services, the prospects of succeeding in a passing off claim will be higher.

Copyright

Under the Copyright, Designs and Patents Act 1988 (CDPA), copyright protection applies to original literary, dramatic, musical or artistic works, sound recordings, films and broadcasts, and prevents copying of such works without the consent of the copyright owner (who is generally the creator of the work). A person’s name, in itself, is not protected by copyright.

While copyright does not directly protect an individual's personality, it may play an important role in specific scenarios. For instance, if a photograph or artistic work featuring an individual is used without permission, the copyright owner (often the photographer or artist) may have grounds to object. However, the individual featured in the work does not automatically have copyright over their own image, creating potential complications.

In cases where the individual has commissioned a photograph or artistic work, the terms of the agreement between the individual and the creator become critical. Clear contractual provisions can help ensure that the individual retains control over how the work is used.

In addition, if the work in which copyright subsists is commissioned for “private and domestic purposes”, the CDPA provides (subject to a few limited exceptions) for the individual’s moral right to prevent copies of the work being published or communicated to the public (i.e., right to privacy). More generally, moral rights provide the creators of copyright works with rights of attribution and protection against derogatory treatment of their work. These rights may also be relevant to protect personality rights, especially when the individual’s identity is central to the creative work.

Deepfake technology creates content with AI using existing content that has already been published online to create a simulated video or sound recording, so the creators of this original content could argue that their copyright has been infringed under the CDPA. Copyright and related rights may therefore help people to control or prevent the creation of deepfakes. For example, rights in sound recordings may be used to prevent training on a singer’s voice contained in those recordings.

Trade marks

Trade marks may be an effective tool for protecting elements of personality rights in the UK, particularly for high-profile individuals and celebrities. By registering a trade mark for their name, signature, or personal brand, individuals can secure exclusive rights to use these identifiers in specific commercial contexts.

For example, athletes, entertainers, and influencers often apply to register their names or slogans associated with their public persona as a trade mark. David Beckham, for instance, has registered his name and signature as a trade mark in relation to a range of goods (including perfumes, sunglasses and jewellery), providing him with legal recourse against unauthorised uses that could confuse the public or dilute his brand.

Trade mark registration can serve several purposes:

1. Preventing infringement: trade marks allow individuals to challenge unauthorised uses of their name or brand in ways that may cause consumer confusion.
2. Licensing and monetisation: registered trade marks can be licensed to third parties for use in merchandise, endorsements, or other commercial ventures, providing a steady income stream.
3. Reputation management: trade marks enable individuals to maintain control over the quality and context in which their name or brand is used, preserving their public image.

In addition, celebrities who have registered their name or likeness as a trade mark might be able to use trade mark law to protect their image from being used, for example, in unauthorised deepfakes.

That being said, trade mark law has its limitations in protecting a celebrity’s name or likeness.

First, in the UK there is no presumption that the only person who can register a famous person's name in relation to goods or services is that person or their agents. In Elvis Presley Enterprises v Sid Shaw Elvisly Yours [1999] RPC 567, the Court of Appeal held that there is no "free-standing general right to character exploitation enjoyable exclusively by a celebrity". In that case, the Court of Appeal refused to register ELVIS and ELVIS PRESLEY in respect of toiletries in class 3 because it said that a mark could not be distinctive where its allusion to the character, quality or non-origin attributes of the goods on which it was applied is too great.

Nonetheless, if a third party applies to register the name or likeness of a living celebrity or a recently deceased celebrity, the Trade Mark Registry may raise an objection on the basis of ‘bad faith’, especially when the application covers goods or services with which the celebrity is associated. Even if the Registry allows an application for registration of a celebrity's name or likeness to proceed, that celebrity can seek to oppose it once it is published, either on absolute grounds (e.g., bad faith) or relative grounds (i.e., based on an earlier trade mark owned by the celebrity protecting that name or likeness).

Second, if a celebrity’s name or likeness is registered as a trade mark in the UK, but it is not used in a commercial context that distinguishes goods or services, after five years from registration the mark may be revoked on the basis of non-use. This means that individuals who are not engaged in commercial activities may struggle to rely on a registered trade mark for protection.

Third, a celebrity’s name or likeness may be regarded as merely descriptive in respect of certain goods and services (e.g., image-carrier products, such as merchandise, posters and photographs), as the average consumer may see the name or likeness as an indication of the subject matter (e.g., a poster about the celebrity) rather than as a designation of origin. In those circumstances, an application to register the name or likeness in the UK may be refused by the Registry for the goods/services in question. For example, an application to register LINKIN PARK, the name of a well-known rock band, as a trade mark in respect of ‘printed matter, posters and poster books’ in class 16 was refused by the Registry on that basis.

Other causes of action

In addition, individuals seeking to protect their personality in the UK can rely on a number of other causes of action, including the following:

• Data protection: the UK General Data Protection Regulation (UK GDPR) and the UK Data Protection Act 2018 (DPA) can provide a measure of protection against the misuse of personal data, including images or other identifying information. Many of the personal indicia used to describe a person fall within the definition of “personal data” in the UK GDPR and DPA. Under the UK GDPR, individuals have the right to control the processing of their personal data, which includes photographs and videos in many cases. In specific circumstances, individuals may rely on the UK GDPR to stop, for example, unlawful deepfakes.
• Defamation: the Defamation Act 2013 may come into play when the misuse of an individual’s identity damages their reputation. For instance, if a person’s likeness is used in a context that falsely implies illegal or immoral behaviour, they may have grounds to sue for defamation. While not directly addressing personality rights, this cause of action provides an additional avenue for redress in specific circumstances, for example in respect of unauthorised deepfakes (as these may be potentially defamatory). However, in most false endorsement cases, a passing off claim is likely to be preferable.
• Breach of confidence: this cause of action can be used to address the unauthorised use or disclosure of private or confidential information, including situations where an individual’s likeness or personal information is exploited. This may be an effective tool for individuals seeking to protect their personality rights in the UK, specifically in situations where confidential or private information is disclosed or used without authorisation in a manner that breaches a duty of confidence. The case Douglas v Hello! [2005] EWCA Civ 595 is a landmark example of breach of confidence in action. Actors Michael Douglas and Catherine Zeta-Jones successfully sued a magazine for publishing unauthorised photographs of their wedding, the exclusive right to which they had sold to another publication. The court held that the magazine’s actions amounted to a breach of confidence and awarded damages to the claimants.
• Misuse of private information: this common law tort can be used to protect an individual from unauthorised publishing of images or other documents containing private and personal information. Developed in Campbell v Mirror Group Newspapers Limited [2004] UKHL 22, this tort is rooted in Article 8 of the European Convention on Human Rights (ECHR) that protects an individual’s right to a private life, but this must be balanced with Article 10 ECHR that gives the right of freedom of expression. A two-stage test is used: (i) a claimant must first establish that they have a reasonable expectation of privacy in the information in question; (ii) if this is established, the court then conducts a balancing exercise between the claimant’s right to a private life against other rights, including the information in question being in the public interest and a right for someone to exercise their freedom of expression under Article 10 ECHR.
• Advertising standards codes: these codes – which regulate television, radio and non-broadcast advertising in the UK - include specific provisions regarding use of images of individuals and quotes made by them. These provisions may be invoked by celebrities (as well as private citizens) where they have been portrayed or referred to in advertisements without permission. A celebrity can rely on these codes to seek withdrawal of advertisements which feature them; however it would not be possible to claim damages based on these codes alone.
• Performers’ rights: the CDPA gives performers a number of property and non-property rights in performances, independent of any copyright or moral rights in the work performed or a film or sound recording of it. These rights are given to performers to enable them to control or be remunerated in relation to their performances. For example, they may apply to an actor’s performance in a film or a vocalist’s performance on a record. Performers also have moral rights, in particular rights to be identified as performer of a qualifying performance and to object to derogatory treatment of a qualifying performance. While primarily aimed at safeguarding artistic and literary works, these rights may intersect with personality rights when an individual's identity is closely tied to a creative performance or work. They may provide a means by which a person may control the dissemination or exploitation of their image. Some respondents to the UK Government’s 2021 consultation suggested performers’ rights should be reviewed in light of AI. They raised concerns that AI may be used to produce unauthorised reproductions of performances, via imitation, re-performance, or synthetisation, and suggested that stronger rights in performances may help to prevent this. The UK has not yet implemented the Beijing Treaty on Audiovisual Performances (Beijing Treaty), which would, among other things, introduce moral rights for performances in audiovisual fixations and provide performers with rights regarding broadcasting and communication to the public of performances in audiovisual fixations (the implementation of this Treaty by the UK could take place this year). It is not clear whether the existing framework would enable performers to deal with AI creating synthetic versions of their performances or other indicia, such as their voice, which has led to calls for reform of performers' rights to address the issues.

Calls for legislative reform and Government’s consultation

The fragmented nature of personality rights protection in the UK has led to calls for legislative reform, particularly in recent years as a consequence of the challenges presented by AI-related technologies.

The rapid development and use of AI tools has led to an increase in the volume and quality of digital replicas (also known as ‘deepfakes’) – which are images, videos and audio recordings created by digital technology to realistically replicate an individual’s voice or appearance. Digital replicas can be used, for example, to synthetically recreate a performer's voice or performance. Concerns about the impact of AI on performers were raised, for example, in the responses to the UK Government's consultation, launched in November 2021, on policy options for changes to patent and copyright legislation to better protect technology created by AI. The responses included concerns that computer-generated performances provide greater opportunities for using performers’ images, voices or likenesses without permission.

In its long-awaited consultation on copyright and AI (which runs until 25 February 2025), discussed in more detail here, the UK Government welcomes views - in the context of digital replicas – on whether the current legal framework remains fit for purpose, including whether individuals have sufficient control over their personality. The consultation states that some in the creative industries have proposed that ‘personality rights’ should be introduced in the UK to give individuals greater control over how their likeness or voice is used (in particular, actors and singers argue that AI outputs like digital replicas put their livelihoods at risk). The consultation states that the Government takes their concerns “seriously’”

While the Government is not consulting on specific proposals on personality rights, the consultation states that the Government is contemplating the introduction of a new type of IP protection for personality rights in the future, which would give individuals greater control over whether content can be created that includes their personality or likeness. This is in line with recent developments in the United States, including the July 2024 US Copyright Office report on digital replicas (which recommends the introduction of a Federal Digital Replica Law) and the California Assembly Bills 2602 and 1836 (which seek to provide protection to performers in the context of AI-generated digital replicas). However, this would be a “significant step” which requires “careful consideration”, particularly because the legal landscape here is “complex” and “extends beyond intellectual property”. It appears that the Government intends to launch a consultation on this topic in the future (presumably after the conclusion of the present consultation on copyright and AI).

Comment

The protection of personality rights in the UK may therefore be reformed in the future, potentially with the introduction of a new type of IP protection for personality, in line with other jurisdictions. This is, however, subject to the relevant responses and views that will be received by the UK Government in reply to the present consultation on copyright and AI (as well as any such responses to a new consultation on this topic, should this be launched by the Government in the future as anticipated).

Considering the patchy nature of the current legal framework, the introduction of a unified framework would likely be the most desirable solution, as it would provide greater clarity and consistency, benefiting both individuals and businesses. For example, a statutory personality right (or ‘right of publicity’) could explicitly recognise an individual’s ability to control the commercial use of their identity and provide clear remedies for infringement. However, any such right would need to be balanced against other rights and interests, including preserving creativity and freedom of expression, particularly in industries like journalism and the arts.

It remains to be seen whether the current legal framework will be reformed in the future. CMS will continue to closely monitor the situation. In the interim, practitioners need to continue to rely on the patchwork of causes of action that are currently available to protect their clients’ personality rights in the UK, as discussed above, and select the most appropriate cause[s] of action in each case depending on the specific circumstances.