From Issue 7, November 2002:

Protecting Names and Reputations

In previous articles I have looked at writers’ contracts and at the way in which writers need to be aware of the laws of copyright and defamation.  There are a host of other laws that individuals are increasingly using to ‘protect’ themselves and writers need, to be aware of these developments, to some extent at least.

I have set out below the different types of legal protection that are being used.  With the increasing value and importance that celebrities’ names and reputations have, such individuals are more prepared to use lawyers to protect themselves from media intrusion as a means of controlling their public image and to prevent others using their name or reputation for gain.

In recent years there has been an explosion in ‘vanity domain names’ where an individual registers their name in order to set up their own website.  A number of high-profile celebrities have taken proceedings to recover website addresses using their names.  Bruce Springsteen was unable to recover BruceSpringsteen.com from a fan setting up an unofficial site but Madonna, Julian Barnes and Jeannette Winterson succeeded in retrieving sites using their names which had been offered to them for sale.

This year the trend is towards trade marking one’s name and Madonna, David Beckham, Victoria Beckham and Jennifer Lopez are at the vanguard.  Though these registrations, if successful, will not prevent people referring to the names, it will make the protection of merchandise bearing their marks much easier and reduce the scope for ’unauthorised’ goods. In the past the law of passing off has been the principal means of restricting unauthorised goods but because it is a limited weapon, its use has not been widespread as a means of protecting individuals’ reputations.

We are also seeing the bedding-down of the new rights of privacy which, to make things more confusing, have become tangled with other laws such as confidentiality and data protection.  The courts are still making it up as they go along.  Catherine Zeta Jones and Michael Douglas used confidentiality as the main reason for preventing illicitly taken photographs at their wedding from being published, though it was phrased under the guise of protecting their right to privacy.  The premiership footballer, Gary Flitcroft, sought to use privacy laws to muzzle the press but failed because his liaison was not considered to be permanent enough for the pillowtalk to be restricted by laws on confidentiality.

The Data Protection Act restricts the use of data that is stored about individuals.  Naomi Campbell used this as a basis for arguing that disclosure of her membership of Narcotics Anonymous had been in breach of these restrictions and therefore publication of the story was illegal. She succeeded in winning modest compensation of £2,500.

The only certainty in all this is that there is more work for lawyers!  Writers need to be aware of these sorts of issues if scripts they are writing involve real-life stories or plot twists that are reliant on the use of a particular individual’s name or reputation.  It is not enough only to consider the laws of copyright and defamation.  This changing legal backdrop should not just be seen as a producer-issue unrelated to the script because it may make the difference between an uncommissioned script being picked up or not.

It may be amusing to see celebrities’ dirty washing in ‘real-life’ programmes such as the proposed Ulrika/Sven ‘reconstruction’ but it is more likely that such celebrities will fight back and if there is any possibility of legal action being made against the film or television version of your script, you need to ensure that the warranties you agree to give the producer are narrow so that you are not personally at risk.  You cannot always rely on your agent to have this sort of awareness as they are rarely professional lawyers who are expected to keep up with every development and they do not necessarily have as intimate an understanding of a script as you do.

Trade Marks
This is the ability to register words or logos that identify a type of goods or service.  Usually when considering individual names, trade marks can only be accepted if they have a specific graphic layout.  In a recent case the owners of the Elvis estate tried to prevent use of merchandise bearing the word ‘Elvis’ and failed.

Passing Off
In the past this has been the remedy used by  celebrities to sue on the basis that material incorrectly suggests that they endorse a particular product, or that their photograph can be used to suggest that they approve a particular statement.  Eddie Irvine won damages when a photograph of him holding a mobile phone was digitally manipulated to make it appear as if he were listening to a portable radio bearing the words ‘Talk Radio’.

Confidentiality
Where information of a confidential nature is passed to another individual in the context where that individual understands the information to be confidential, that individual cannot pass it on without the permission of the original person.  This is usually seen as relating to business-sensitive information but is now being used as a means of trying to restrain publication of stories where an allegation of defamation will not work because the stories are true.

Domain Name Registration
The process of obtaining domain names is on a  first come, first served basis.  Individuals may have registered their names for .com suffixes but need really to consider all suffixes in order to prevent the suggestion that they are somehow involved in the site.  Porn sites often use common misspellings of names and set up sites that redirect traffic to their sites.  Many of these are held off-shore and are difficult to prevent.  Each of the domain name registers has a mechanism for adjudicating on domain name disputes that is much cheaper than litigation.  The main requirement is proving bad faith which be can difficult if the use is justifiable.  Celebrities who have registered their names as trade marks will find it easier to reclaim these sorts of offending websites.

Privacy
The Human Rights Act 1998 brought in the right to privacy and freedom of the press but privacy comes second where there is an overriding public benefit to be gained from covering a story.  The courts are grappling with how to determine when the public benefit is sufficiently great.  The latest celebrity example is Angus Deayton’s reported attempts to prevent further revelations by obtaining an injunction against a Sunday newspaper.  The trouble for celebrities is that newspapers are prepared to put a great deal of resources into ensuring that law of privacy does not interfere with kiss-and-tell and other staple types of stories

© Sean Egan 2002

Sean Egan is Head of the Arts & Media Department at Bates, Wells & Braithwaite, Solicitors.