Today is Rihanna’s lucky day.
The pop music superstar has not only succeeded in winning a lawsuit against Topshop, a U.K.-based fashion retailer that has stores around the world; she also got a justice to recognize the value of her imprimatur as a bonafide “style icon.”
Rihanna brought the lawsuit in the U.K. after seeing her image on an oversized sleeveless jersey being sold. She alleged that Topshop was “passing off” her approval. As such, a British high court justice had to investigate why consumers buy T-shirts that feature the faces of celebrities: Was it because her fans thought she endorsed the product or was it merely because consumers liked the look?
On Wednesday, Justice Colin Birss reached a conclusion.
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“The mere sale by a trader of a T-shirt bearing an image of a famous person is not, without more, an act of passing off,” writes the justice. “However the sale of this image of this person on this garment by this shop in these circumstances is a different matter.”
If the case was brought in the U.S., Rihanna might have claimed that her publicity rights were violated. (For example, Peter Fonda recently sued after seeing his image on a Dolce & Gabbana “Easy Rider” T-shirt.) But as the justice notes in his opinion, there is in England no such thing “as a free standing general right by a famous person (or anyone else) to control the reproduction of their image.”
Instead, Rihanna made a claim that’s similar to false advertising. That meant the British high court had to examine whether the public was deceived through a misrepresentation into believing that Rihanna had blessed the jersey.
Knitmania, the producer of the jersey in question, had certain licensing relationships including Warner Bros., LucasFilm and David Bowie. But the company also made T-shirts after acquiring rights from “third party” photographers but without any license from the person depicted. Since 2011, according to testimony from Knitmania’s creative director, there’s been a fashion trend for iconic images on T-shirts.
Of course, consumers have been buying T-shirts with musicians pictured for quite some time. Go to any concert and there will be officially sanctioned merchandise. But as the justice notes, the clothing tends to be of cheaper quality using techniques like screen printing.
Rihanna — “cool, edgy,” the Justice Birss notes — has many licensing agreements and has attempted to step up in the fashion world. She’s not the typical pop star. The efforts appear to be successful.
“I find on the evidence that in 2012 Rihanna was and is regarded as a style icon by many people, predominantly young females aged between about 13 and 30,” writes the justice. “Such people are interested in what they perceive to be Rihanna’s views about style and fashion. If Rihanna is seen to wear or approve of an item of clothing, that is an endorsement of that item in the mind of those people.”
That doesn’t settle the dispute because Justice Birss continues, “Selling a garment with a recognisable image of a famous person is not, in and of itself, passing off. To be passing off, a false belief engendered in the mind of the potential purchaser must play a part in their decision to buy the product.”
In defense, Topshop argued that consumers were buying the Rihanna-featured jerseys because they like the image and product for its own qualities. The retailer also said that there was nothing about the merchandise itself that misrepresented an endorsement — it didn’t, for example, have her R slash logo. Plus, there were other celebrities like Prince on other jerseys.
Nevertheless, largely because of Rihanna’s fashionable caché, she’s able to convince Justice Birss that the motivation for the buyer was more than simply liking her look.
“Although I accept that a good number of purchasers will buy the T-shirt without giving the question of authorisation any thought at all, in my judgment a substantial portion of those considering the product will be induced to think it is a garment authorised by the artist,” writes the justice.
Continuing, Justice Birss says, “The persons who do this will be the Rihanna fans. They will recognise or think they recognise the particular image of Rihanna, not simply as a picture of the artist, but as a particular picture of her associated with a particular context, the recent Talk That Talk album. For those persons the idea that it is authorised will be part of what motivates them to buy the product. I am quite satisfied that many fans of Rihanna regard her endorsement as important. She is their style icon.”