Can I Use Celebrity Images for Advertising/Branding?
As companies compete for our attention (and our wallets) in an increasingly crowded marketplace, we see an increasing number of celebrity endorsements popping up on advertisements in various forms, ranging from billboards and posters to television commercials and social media posts. Celebrity endorsements offer multiple benefits to companies and brands when executed effectively, including increased brand visibility, differentiation from other products and brands and ultimately increased sales and revenue.
An incident involving a local food and beverage brand’s use of a public figure’s name and image was caught in the media spotlight in August 2023. As part of its initiative to commemorate the centenary year of Singapore’s founding prime minister Mr Lee Kuan Yew’s birth, the brand featured Mr Lee’s image on limited-edition drink packets. This drew criticism from members of the public online, but it was later clarified that the brand had consulted the Ministry of Culture, Community and Youth (MCCY) on the guidelines pertaining to the use of Mr Lee’s name and image in advance. This was confirmed by MCCY, but MCCY cautioned that “it is the responsibility of users to ensure that their use of Mr Lee’s image is in line with intellectual property laws”.
Thus, if you are a business owner or an advertising/branding company operating in Singapore, it is important to bear in mind the potential legal issues surrounding the use of a celebrity’s image for advertising/branding purposes, as it is ultimately on you, as the user, to ensure that you are doing so in line with the relevant laws.
This article will cover the following topics:
Can Images of Celebrities and/or Public Figures be Used for Advertising/Branding Purposes?
Individuals, especially celebrities and public figures, enjoy a right of publicity in the United States (US). The right of publicity refers to the legal right to control commercial uses of one’s identity (e.g. one’s name, likeness, image and other aspects of one’s personal identity). In other words, the name, likeness, image or other aspects of a celebrity’s or public figure’s personal identity cannot be used for advertising or branding purposes in the US, unless the celebrity or public figure authorises such commercial use.
However, unlike in the US, the right of publicity concept does not exist under Singapore law. Hence, celebrities and public figures do not enjoy a right of publicity in Singapore.
Conceptually, in the US, the right of publicity is classified under the broader group of intellectual property rights. Yet, the right of publicity remains distinct and separate from the other commonly referred to intellectual property (IP) rights like trademarks and copyrights. The main difference between the right to publicity, trademarks and copyrights relates to the purpose of the rights and what they were intended to protect:
- The right of publicity focuses on an individual’s personal identity and the prevention of its unauthorised commercial use.
- On the other hand, trademarks, which refer to symbols, words, phrases, or logos used to identify and distinguish goods or services of one business from others aim to protect brand identities and prevent consumers from being confused as to the source of the goods or services.
- Lastly, copyright, which refers to the legal protection granted to creators of original literary, artistic, and intellectual works, protects the creator’s exclusive rights to reproduce, distribute and display their works. The purpose of copyrights is to safeguard the exclusive rights of creators to their original works of expression.
The following example extracted from a notable real-life case which was decided in the US courts further illustrates what the right of publicity entails and how the right of publicity operates in the US to protect celebrities’ and public figures’ images from being used for advertising purposes:
- Mr Michael Jordan is a former professional basketball player and is no stranger to celebrity endorsements. However, in one case, a major supermarket chain ran an advertisement in the Sports Illustrated magazine which featured Mr Jordan’s name, his iconic jersey number twenty-three, the black and red colours of the Chicago Bulls, and a silhouette that resembles the Jumpman logo used for the Jordan Brand at Nike. The advertisement included a coupon for a steak product sold at the supermarket. After the magazine was published, Mr Jordan filed a claim against the supermarket chain, claiming that they had misappropriated his name and persona. The court determined that the supermarket chain had infringed Mr Jordan’s right of publicity and awarded Mr Jordan US$ 8.9 million in damages.
What are the Potential Legal Issues That Might Arise from Using a Celebrity/Public Figure’s Image in Singapore?
Even though the concept of a right of publicity does not exist under Singapore law, there are still various potential legal issues which could arise from using a celebrity’s or public figure’s image in Singapore.
Common law tort of passing off
The first potential legal issue that might arise is the potential liability of the user under the common law tort of passing off. The common law tort of passing off was originally intended to protect competitors in the same field of business from “passing off” their products as that of their competitors. This was to prevent commercial dishonesty.
However, the concept has been extended to also protect the commercial interests of individuals with established goodwill or valuable reputation against third parties who claim to be associated or connected with the individuals, without authorisation from the individuals themselves. Such third parties are also prevented from unlawfully profiting off such association or connection. Thus, a celebrity/public figure can now rely on the common law tort of passing off to protect themselves against a third party using their image without authorisation, and profiting off such use.
As a matter of fact, the common law tort of passing off has already been used by celebrities seeking a remedy for commercial appropriation of their fame. For example, Ms Robyn Rihanna Fenty (who goes by Rihanna), a famous pop star and style icon, commenced legal proceedings against a UK-based high street fashion retailer for selling a t-shirt bearing her image. The image was photographed by an independent photographer, and the fashion retailer had a licence from the photographer, but no licence from Rihanna herself. The UK courts ruled in favour of Rihanna, who succeeded under the common law tort of passing off.
The three elements that have to be proven in order for a celebrity or public figure to succeed in a passing off claim are:
- The celebrity or public figure had goodwill and a reputation among relevant members of the public.
- The user’s conduct constituted a misrepresentation.
- Such a misrepresentation was likely to cause damage to the celebrity or public figure’s goodwill.
To understand how the three elements are assessed, the court’s finding in the case involving Rihanna is illustrative:
- On the first element, the court found that Rihanna had ample goodwill. She was a world-famous pop star who ran very large merchandising and endorsement operations. Rihanna was regarded as a style icon by many people, especially young females aged between about 13 and 30 who were interested in what they perceived to be Rihanna’s views about style and fashion. If Rihanna was seen to wear or approve of an item of clothing, that would be viewed as an endorsement of that item in the mind of those people.
- On the second element of whether the fashion retailer’s conduct constituted a misrepresentation, the court considered the various aspects of the case. The main findings which led to the conclusion that the fashion retailer’s conduct constituted a misrepresentation was that the fashion retailer had made considerable efforts to emphasise connections in the public mind between the store and famous stylish people, such as Rihanna herself. For example, the fashion retailer once held a shopping competition, offering the entrants the chance to win a personal shopping appointment with Rihanna at their flagship store. Further, just weeks before the t-shirt featuring Rihanna’s image was on sale, the fashion retailer had posted on Twitter the fact that Rihanna was visiting the store. Taking these factors, among other things, into consideration, the court determined that a substantial portion of potential purchasers considering the product would have been deceived into thinking that the product was authorised and endorsed by Rihanna, even though it was in fact not authorised.
- Lastly, on the third element of whether there was likelihood of damage that may be caused to Rihanna’s goodwill, the court found that if a substantial number of purchasers were likely to be deceived into buying the t-shirt because of a false belief that it had been authorised by Rihanna, then that would be damaging to her goodwill as a fashion and style icon, as she did not in fact endorse or intend to endorse the brand or the t-shirt. It would also amount to sales lost to Rihanna’s merchandising business and represent a loss of control of Rihanna’s reputation in the fashion sphere.
Some of the common remedies that a celebrity or public figure who succeeds in a claim under the common law tort of passing off may be granted are:
- Injunctive relief to “injunct” or prevent the user from continuing to use the celebrity’s image in the manner which was the subject of the claim.
- Monetary damages for the celebrity or public figure’s loss of reputation and/or profit.
- An order for the delivery or destruction of the products that are the subject of the claim.
Tort of defamation
Another potential legal issue that may arise from using a celebrity or public figure’s image in Singapore is the user’s liability under the tort of defamation. Broadly speaking, the tort of defamation refers to a claim with the aim of protecting an individual’s reputation from false statements that harm the individual’s character or reputation.
The main elements that would have to be proven for the tort of defamation are as follows:
- A defamatory statement has been made. A statement is defamatory if it lowers the victim in the estimation of right-thinking members of society, causes the victim to be shunned or avoided, or exposes the victim to hatred, contempt or ridicule.
- The statement must refer to the victim.
- The statement must be published or communicated to a third party.
In one local case, Mr Chiam See Tong, who is a prominent politician (now retired) in Singapore, and his supporters had a birthday dinner celebration for him at a restaurant. During the dinner, Mr Chiam sang at a karaoke singing competition organised by the restaurant to raise funds for charity. Thereafter, the restaurant posted advertisements in the newspaper which, apart from marketing the restaurant and its offerings, contained a photograph of Mr Chiam holding a microphone, beside an English caption “Charity/Fund collection/Community Chest Activity Dedication Songs are welcome.”
The Singapore court found that an ordinary reader in English who saw the advertisement would conclude that Mr Chiam was making a commercial announcement for the restaurant, who deliberately made use of the photograph and Mr Chiam’s popularity to promote the restaurant. Thus, the court agreed with Mr Chiam that the advertisements suggested that Mr Chiam had consented to the use of his photograph for publicity, either for gain or to sponsor a private restaurant, and that he had done so by taking advantage of his position as a Member of Parliament and also for the benefit of promoting himself as a lawyer.
As the court considered that a substantial portion of responsible and right-thinking members of society would have thought less well of Mr Chiam after reading the advertisements, the court concluded that advertisements were defamatory of Mr Chiam. Accordingly, Mr Chiam was awarded S$50,000 in damages to repair his reputation and status as a Member of Parliament and as compensation for his anguish and hurt feelings.
Assuming the celebrity or public figure can prove the elements to succeed under the tort of defamation, the remedies are largely similar to that of the common law tort of passing off, namely:
- Monetary damages awarded with the purpose of easing the distress suffered by the celebrity or public figure, as well as restoring his/her reputation.
- Injunctive relief to “injunct” or prevent the maker of the statement from publishing future defamatory statements or to force the maker to retract the statement.
For more information on the elements of the tort of defamation, the remedies as well as possible defences against a tort of defamation claim, you can refer to our other article on the legal recourse for online defamation in Singapore.
Singapore Code of Advertising Practice guidelines
The use of a celebrity or public figure’s image or likeness could also run afoul of the Singapore Code of Advertising Practice (SCAP), which is a set of guidelines that seeks to foster a high standard of ethics in advertising. Under the SCAP, advertisements are classified as misleading if they are inaccurate, ambiguous, exaggerated, or omit important details.
Using a celebrity or public figure’s image or likeness as part of your advertisement could lead to your advertisement being classified as misleading, as it could potentially be:
- Misrepresenting a matter likely to influence consumers’ attitudes to the product, advertiser, or promoter: The association with the celebrity or public figure could lead members of the public to think that the product/service being advertised is endorsed by that celebrity or public figure, thereby influencing their attitudes towards the product/service or towards the advertiser.
- Misrepresenting information to mislead consumers into believing any matter that is not true: As above, the advertisement featuring the celebrity or public figure could mislead consumers into believing that the product/service is endorsed by that celebrity or public figure, which is untrue.
Notwithstanding the above, even if an advertisement is classified as misleading under the SCAP, as the SCAP does not have any force of law in Singapore, advertisers will not be subject to any criminal sanctions for breaching the SCAP.
However, this does not mean that there are no consequences or potential legal implications for posting misleading advertisements. Advertisers should keep in mind that the Advertising Standards Authority of Singapore (ASAS), which administers the SCAP, has certain powers which include:
- Asking the advertiser or advertising agency to amend or withdraw any advertisements that are in breach of the SCAP.
- Requesting its members to sanction advertisers or advertising agencies which are in breach of the SCAP, including withdrawing facilities, rights or services from such advertisers or advertising agencies.
- Withholding advertising space or time from advertisers, and withdrawing trading privileges from advertising agencies.
- Adverse publicity, i.e. publishing details of the outcome of investigations, naming advertisers or advertising agencies which are in breach of the SCAP.
Additionally, retailers that put out misleading advertisements may also be caught under the Consumer Protection (Fair Trading) Act (CPFTA), which prohibits unfair practices, including the making of false or misleading claims. The Competition and Consumer Commission of Singapore (CCCS) is the administering agency of the CPFTA, with investigative and enforcement powers. As a result, the CCCS can take action against errant retailers that engage in unfair practices. In particular, the CCCS may:
- Pursuant to section 9 of the CPFTA, file applications with the courts against retailers engaging or likely to engage in unfair practices, for a declaration that the practice is an unfair practice, or for an injunction restraining the retailer from engaging in the unfair practice.
- If the retailer refuses to or does not comply with the injunction orders by the courts, commence an application against the retailer for contempt of court, which is a criminal offence that may result in a fine and/or imprisonment.
However, unlike the common law tort of passing off or the tort of defamation, there are no remedies per se that are available to or that will be granted to the celebrity or public figure themselves. For example, the celebrity or public figure will not be able to claim monetary damages. However, the celebrity or public figure whose image or likeness has been used without authorisation can report the matter to the ASAS or CCCS, so that the necessary steps can be taken to prevent the further publication or use of the advertisements, and to restrain any further misleading advertisements being published.
For more information on what constitutes a misleading advertisement and whether misleading advertisements are illegal in Singapore, you can refer to our other article on misleading advertisements.
Are There Any Practical Steps That Can be Taken to Reduce These Potential Legal Risks?
In order to reduce the legal risks mentioned in the section above, there are some steps that you can take as a business owner or advertiser, including:
- Seeking approval from the relevant authorities (if applicable): For example, in the case of the food and beverage brand’s use of Mr Lee Kuan Yew’s image on their drink packets, the brand had consulted the MCCY on the guidelines pertaining to the use of Mr Lee’s name and image in advance. This is because MCCY regulates the use of our national symbols, which includes the name and image of Mr Lee Kuan Yew.
- Seeking approval from the IP owner(s): If you are considering using a piece of work (i.e. photograph, video or sound recording etc.) that was produced by someone else which features a celebrity or public figure, it would be prudent to obtain the consent and approval of that person (e.g. by obtaining a licence) before using the work. This is because the producer of the work enjoys the copyright over that piece of work, giving him or her exclusive rights to reproduce, publish, perform, communicate, and adapt his or her work. For more information on when you need a copyright licence and when you do not, you can refer to our other article on how to use images on your website without violating Singapore’s copyright laws. However, do note that even if you obtain a licence from the IP owners, you may still be liable under the common law tort of passing off if the elements are established (see for example the case involving Rihanna above).
- Seeking approval from the celebrity or public figure: This would be the most straightforward way to steer clear of the potential legal issues. In the process of negotiating with the celebrity or public figure on the use of his/her image, you should discuss the terms of the use, which sets the parameters for what and how you can use the celebrity or public figure’s image. Therefore, so long as you keep within the confines of what was agreed, you should be able to avoid the potential legal issues described above.
There are various potential legal issues that one must be aware of when using a celebrity’s or public figure’s image for advertising/branding purposes in Singapore. This is especially since there are very sensitive monetary and reputational concerns on the line – the unauthorised use of a celebrity’s or public figure’s image could deprive the celebrity or public figure of a stream of income that they would otherwise have had and may even result in negative associations with brands that the celebrity or public figure does not wish to endorse.
Apart from potential legal liability under the common law tort of passing off and the tort of defamation, users and advertisers have to also be aware of the SCAP guidelines, so as not to unwittingly release an advertisement that is misleading.
If in doubt about whether you can use a celebrity’s or public figure’s image without authorisation, you can consult an intellectual property lawyer who would be able to advise you on the potential risks of using the image without authorisation, how you can mitigate some of those risks, and even act on your behalf if the risks materialise. An intellectual property lawyer will also be able to advise you on and represent your interests in any negotiations with the celebrity or public figure on the use of their image, so that your business needs are adequately covered.
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