While tech lobbyists are working hard to reduce the scope of copyright, Channel Island Guernsey has just introduced a new intellectual property right – the Image Right (IR) – and anyone in the world can register this right via the island.
As the global success of MailOnline illustrates, society appears to be growing more and more celebrity obsessed, and IR is set to allow celebrities to monetise their personality more extensively. The IR was first announced this week by Guernsey Minister of Commerce and Employment, Kevin Stewart, to a music and tech industry audience at London’s Music 4.5 seminar.
Mannerisms, distinctive characteristics, gestures – even the silhouette – are just some parts of a personality that can be covered by this new intellectual property right.
For example, Winston Churchill’s estate could register his silhouette of smoking a cigar, and would then have a claim if it were copied. A newspaper could use a picture of a celebrity in a news report without having to pay the celebrity, as “fair use” applies even to IR. But if it decided to publish and sell a calendar of its celebrity pictures, they’d have to pay.
Though Guernsey is a British Crown dependency located in the English Channel, it’s largely independent. Which is why it’s a great place for companies that don’t want to pay British taxes (one well known resident is Guy Hands, the founder of Terra Firma, EMI’s previous owner). Stewart, however, claims Guernsey is not a “tax haven” but rather “tax neutral,” adding, “It’s safer to do business in Guernsey than Cyprus.” Interpret that as you will.
Crucially, unlike the UK, the island is not an EU member and has its own copyright laws. Guernsey’s Registrar of Intellectual Property, John Ogier, used the example of a greeting card featuring a photo of Marilyn Monroe. Though the photographer, or his estate, gets a royalty from each card sold, Monroe’s estate gets nothing. If she had registered her IR, she would.
Registering is not cheap, at least not for up-and-coming artists, with fees starting at £100 per year (about $150 US). As IR is a property right, it can be “assigned, licensed and sold and purchased just like any other item or property”, explained Ogier. Unlike copyright, IR needs to be registered to take effect – and, crucially, unlike copyright it can be renewed in perpetuity.
This dwarfs the current length of copyright, as the IR could possibly never ever enter the public domain.
Ogier showed a picture of Paul McCartney, concluding: “Is love all you need, or is it something more?”
Perhaps unsurprisingly, even the artist managers attending the conference had issues with this new property right, saying that the more crucial parts of it were already covered by trademarks and “passing off“.
“The only people who will benefit are lawyers,” declared Peter Jenner, who used to manage acts such as Pink Floyd and the Clash. “Would Warhol have been able to create his pictures [if IR existed back then]? And who would you have had to ask permission from to make Lincoln, the movie?”
Marc Marot, the chairman of Crown Talent & Media Group, whose clients include Jessie J and the Sugababes, said that it was more important to find a way to license small usage of IP and not to inhibit creativity.
The option of assigning, buying and selling IR in perpetuity is clearly one of the most problematic issues, and it certainly is at odds with European “moral rights”. Even the US, which doesn’t recognise moral rights, has a copyright clause that reverts the rights to artists after 35 years – a term that could arguably be shortened.
Marot recounted an incident where a footballer had assigned the rights to his image for T-shirts early on in his career for £15,000 to a European company. And when he was offered a transfer to a British club the deal fell through due to his image not being available for the UK team’s T-shirts.
And if you think this is just a marginal right invented by a tiny island that won’t have much of an effect on tech startups, you may want to consider that, with the help of the UK, IR is set to be included in the Berne Convention, according to Stewart.
“When Digital Music News reflected that, in the end, the ones who would benefit from IR are those with the biggest wallets, big enough to threaten with lawsuits, Stewart replied: “Isn’t that how all law works?”