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Image Rights

The size of the commercial contracts being signed in recent years by the likes of Tiger Woods, David Beckham and others, confirms that the exploitation of an individual's image rights as a distinct asset class can now be a significant source of economic activity. At the other end of the scale, there may be a single "exclusive" photograph which a commercial photographer wishes to register and protect.

Until now, no country has introduced legislation specifically for the protection and exploitation of image rights internationally, as most IP rights are registered at national levels, requiring re-registration in multiple countries to protect their use in those countries. However Guernsey's legislators believe that by creating a framework for the registration of image rights, it will enable such rights to become a fully accepted asset class in a way which will allow their commercial exploitation, thereby attracting business to Guernsey.

Accordingly innovative new legislation has been produced to allow this, with The Image Rights (Bailiwick of Guernsey) Ordinance 2012, which came into force at the beginning of 2013. This legislation allows celebrities and others to take advantage of the commercial value of particular rights through sponsorship, merchandising and assorted other methods of product endorsement. The legislation is intended to mirror trademark principles as far as possible, which should prove to be very useful from a case law perspective, and the wide ranging definition of infringements will be able to be applied to a much broader range of goods and services than is the case with trademarks, making it particularly attractive to brand owners.

The legislation is intended to strike a commercial balance between allowing rights to be registered and ensuring that the public interest is preserved. It does not attempt to prevent press reporting and commentary, nor prevent satire.

As the legislation allows for corporate bodies to register image rights, there is the expectation that large corporations, high profile individuals and other brand owners may wish to engage the services of a Guernsey based fiduciary, such as Hansard, in order to group together a range of related image rights in a Guernsey company or other vehicle such as a Protected Cell Company. This would then allow the company to engage with third parties to exploit those rights commercially.

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