This post is not authorised by Raygun

In December last year, a little-known Sydney comedian named Steph Broadbridge was in the process of rehearsing a production called "Raygun: The Musical" when a lawyer's letter brought the curtain down sharply.  A solicitor for Rachel Gunn, the subject of the musical and an Olympian who competed at Paris in what's officially known as Breaking Women's B-Girls, demanded that the production be halted, because it would infringe her client's "intellectual property rights".  The musical, marketed as a parody, was promptly abandoned, although the legal basis for Gunn's claims was, at best, fuzzy.

The incident raises a broader, more interesting question: what rights do celebrities (or even plain civilians) have over their own images?  The answer to this would be easy in a country like France, where it's recognised that each person has a right to control the use of their own image: in a fairly recent case, for example, the ex-wife of a renowned French novelist obtained a court order to prevent him from creating characters based on her in his books.  But no equivalent right exists in the common law world, and certainly not in Australia.  Courts have repeatedly found that there is no common law "right of publicity".  Gunn's lawyers asserted copyright over the name "Raygun", but generally a short, invented name is not protected by copyright – although it can be patented, and Gunn has applied for that protection.  Even so, patent protection is limited, applying only to the particular classes of goods and services specified in the registration.

As a general proposition, a person's name and likeness can be used in an artistic work without their consent.  If a writer wants to include in their play or film a character called Raygun, or Prince Harry, or Anthony Albanese, they're free to do so.  Anyone with the capacity to withstand profound boredom can turn my life into a book, film or interpretative dance routine, and there’s not much I can do about it.

However, the law may intervene when a person's name or likeness is used in a commercial context and there's a clear implication that the use of the name or likeness has been authorised.  At common law, this protection is provided by the tort of passing off.  Passing off occurs when someone appropriates another person’s name or image to promote goods or services, in a context which suggests – misleadingly – that the use has been authorised.  In those circumstances, the person whose image has been used can sue for damages.

In 2012, the British fashion retailer, Topshop, used a photograph of Rihanna to promote a sleeveless t-shirt.  Rihanna didn’t own the rights to the photograph, which Topshop had a licence to use, and there was no breach of copyright or unauthorised use of a trademark.  But the judge (in the English High Court) found that Rihanna frequently endorsed products, often for fashion brands, so that people who viewed the advertisement would be likely to assume that the garment was endorsed by her.  This was misleading, and resulted in damage to Rihanna’s goodwill and her ability to obtain further fashion endorsements. 

In Australia, a similar result could be achieved under section 18 of the Australian Consumer Law, which prohibits corporations from engaging in misleading or deceptive conduct in trade or commerce.  Publication of an advertisement that conveys the misleading impression of a celebrity endorsement would almost certainly contravene this section, and a broad range of remedies are available, which would include an injunction to remove the advertisement, and damages. 

As the law stands in Australia, therefore, celebrities have limited control over their own names and likenesses – until someone tries to use them for profit in a manner that misleadingly suggests that the use has been approved.