So, you just binged the entire Sex & The City revival season (nothing will ever compare to the OG though, right? A tear was shed for the missing Samantha) and now your creative mind is swirling with funky designs of Sarah Jessica Parker in the iconic Versace gown on a tote bag.
Or do you happen to have an obsession with David Attenborough (ahem... definitely not speaking from personal experience here) and want to put his face on everything around you (I’m talking mugs, water bottles, t-shirts, wrapping paper... the list goes on)?
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So, can I just pick a fave celeb, stick ‘em on a mug and go?
Nowadays, we are constantly bombarded with images of celebrities and famous people on social media, billboards and magazines. Sometimes we love these celebs, sometimes we loathe them, and sometimes we are inspired by them in our own artwork and designs. I mean, fan art and fan fiction (those Harry Potter ones got really saucy!) are huge around the world! But what happens if you want to derive an income from it?
Your beautifully curated line drawing of Mr Attenborough on a mug with his famous quote of “I wish the world was twice as big - and half of it was still unexplored” may look damn cute in an office... but what if for some weird reason he found out about this and thought to himself, “Actually, I don’t particularly want my image on a mug. Bring in the lawyers!”
Whilst other countries, like the USA, have much clearer and stricter regulations, the waters in Australia are a little murky. However, one thing is definitely crystal clear: using the likeness of a famous person, or even a well-known influencer, without permission via a licence agreement may cause you a world of hurt.
Currently, there is no specific legislation that prohibits you from using a famous person’s image or identity to create or inspire your product without their express consent. However, there are two legal avenues that they can drive their Ferrari down to stop you from using their likeness. They may even be able to claim compensation from you. Yikes!
Australian Consumer Law (ACL)
Ahhh, the good old ACL – our trusty friend when we are the wronged customer. But in this case, they might be your worst enemy!
There are two sections of the ACL that we really need to keep an eye on:
Section 18 – a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive
Boring story short, as a business, you should not be selling a product that is going to or is likely to mislead or deceive your customers. Think the Tinder Swindler or the infamous Anna Delvey who conned New York’s wealthiest out of hundreds of thousands of dollars. Is your product going to lead a customer into thinking a celebrity is associated with it when they aren’t? And remember, it doesn’t have to actually mislead or deceive them – the Court just needs to find that it was likely to! It’s definitely a fine line you do not want to cross.
Section 29(1)(g) – A person must not…make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits
Similar to Section 18, it’s about how your product is being perceived. While you may see nothing wrong with putting the face of the very sexy Chris Hemsworth (Chris is the sexiest Hemsworth brother and I will not hear a bar of it if you think otherwise) on a t-shirt and selling it for $20 a pop, is the general public going to think that he is working in partnership with your brand? Or that he has sponsored the production of the tees? If so, the heat you’re feeling right now is unfortunately not because Chris Hemsworth is around…
Coming back to our amazing biologist and natural historian Mr. David Attenborough (let’s go DA for short)…
If he’s unhappy with the use of his image and wants to recreate one of those scary predator-eats-prey (I’m sorry but you are the prey in this case) scenes, he can bring a legal action under the common law tort of “passing off”. Common law is what us legal geeks use to describe “unwritten laws” that are based on cases fought over in Court (cue Judge Judy music) rather than written in legislation like the ACL.
The common law of “passing off” is similar to ACL in that a celebrity can use it when they believe that there has been a misrepresentation that a product is associated with them.
These are the key elements that would need to be ticked off in Court:
The celeb must have a sufficient reputation or goodwill (another boring legal term that means an intangible personal property. Think of it like your vibe, your aura, that “thing” you bring to the table).
David Attenborough is going to hit this mark. He is known worldwide and there is no one in the world that has his soothing voice and somehow charming way of narrating a seal chasing after a baby penguin.
- A misrepresentation was made that the celeb was associated with or endorsed your goods or services.
This will really depend on what you’re out there selling. A mug with a caricature of David Attenborough riding a shark into the sunset? Gnarly! And you might be okay because it is a cheeky work of fiction rather than a deliberate misrepresentation that DA is in some way the face, voice and brand of your business.
In contrast, take this real-life Simpsons case.
As we all know, Homer Simpson’s absolute favourite thing to do on a Sunday arvo is cracking open an ice cold Duff Beer. Of course, we all know this is all fictional, but in 1996, a South Australian brewing company decided to make it a reality and created a real beer named Duff Beer.
Twentieth Century Fox, the creator of the Simpsons, swiftly took legal action. They noted concerns that this could encourage younger viewers of the show to drink, and subsequently damage the show and the company’s reputation!
And what did the Court find? Considering the target market of the show and of the strong connection with the use of the name “Duff Beer”, consumers were very likely to associate the product with the show – even if the beer had a disclaimer on it!
Now THAT’S gnarly!
- This misrepresentation causes, or is likely to cause, damage to their image.
Once again, it really depends. Take the shark-riding example above. Given that DA is best known for his animal documentaries, he may have a giggle at your cheeky piece of art and that’s it. But…what if he just spent a whole year on a big shark conservatory crusade and has outright banned all memes about them? Then you may be damaging his shark hero image!
All silly shark comments aside, whilst you may be thinking to yourself – surely a big-time celeb is not going to care what I’m doing with their images in my little business on the tiny beach town in Australia…you don’t want to take that risk!
Our key takeaway item on the menu today?
Hot chips with a side of uncertainty: When it comes to using a celeb’s image on your product/artwork or as inspiration for a product/artwork, you may be at risk of legal action.
Double bacon cheeseburger: If a celeb is not happy with you profiting off their images or well-known features and characteristics, there are currently two possible ways for them to lake legal action - under the Australian Consumer Law or the common law of passing off.
Large sundae with some sticky business toppings: However, it is good to note that just because you used a celeb’s image without their permission, this does not mean that they can successfully sue you. The famous person must clearly prove that how you have used their image could lead your customers to think that they are associated with your brand. In some cases it might be really easy to draw the connection, and in others, you might be able to fight it.
So, the question is... do you want to run the risk of this uncertainty after you’ve already exhausted days, hours, sweat, blood and tears into creating a product (or several products) that you’re really proud of?
If you’re thinking of using a celeb’s image in your business, limit your risk and book in for an obligation-free chat with us today!
P.S Once you’re legally legit, can we be the first to get our hands on one of those DA x Shark mugs?