Intellectual Property Rights: image rights: introduction
What is an “image right”?
In UK law there is no such thing as an “image right” or “personality right” per se (referred to in the rest of this section as “image rights”) because there is no legal process in the UK which protects the Intellectual Property Rights (IPR) that identify an image or personality. See CG68450 for more detail.
In this context, reference is sometimes made to Article 8 of the European Convention on Human Rights which protects the right to “respect for private and family life”, which is imported into UK law by the Human Rights Act 1998. However, although one may have a legal right to privacy that is a purely personal right, it is not capable of transfer and, in our view, it is not property for Capital Gains Tax purposes.
For CGT “all forms of property” are assets CG11700 but property is something capable of being owned and with a value that can be realised CG12010. Whether an item of intangible property is an asset for the purposes of CGT, within the meaning in TCGA1992/s21, is normally determined by reference to the holder’s legal rights to protect his ownership of the item in the courts. As an “image right” cannot be protected under legal process in the UK, it cannot be an asset within section 21.
Therefore the concept of an “image right” is, to the extent that it can be protected under UK law, dependent on a bundle of different IPRs. These may include, for example, contractual rights CG13000, registered trade marks CG68220, passing-off of goodwill CG68410 and copyright CG68250.
It is important to recognise that the act of registering a trade mark does not itself create a valuable intangible asset, as it is the use made of the asset that contributes to any value. Similarly although a passing-off action may be possible to protect reputation, potential infringement liability is not the same as business goodwill established through successful trading.
It should be borne in mind that under section 37 TCGA 1992 a charge to income tax takes priority over a charge to CGT. Consequently a payment derived from, say, copyright may, depending on the circumstances, be chargeable to income tax BIM35725 and not to CGT.
Image rights in other jurisdictions
In some jurisdictions (e.g. more than 30 States under US law) there is a “right of publicity” or “personality right”, which treats aspects of personality as a kind of property that may be misappropriated by commercial exploitation without consent CG68430.
UK law does not recognise such a right. The only way in which a pure image right can be protected in the UK is under the Law of Passing-Off CG68410. However, the use of “image rights” contracts continues to be popular with sportsmen, entertainers and others CG68420.