On 3 December 2012 Guernsey's new image rights legislation, The Image Rights (Bailiwick of Guernsey) Ordinance, 2012 ("IRO"), came into force creating a new form of registered intellectual property right in a personality and its associated images.
The legislation focuses on the concept of a "personnage", being the natural person, legal person or fictional character whose personality is registered to create a "registered personality" under the IRO. Upon registration of a registered personality, one or more images associated with that personality may be registered against it to create "registered images".
Legal ownership of the registered personality and registered images is vested in the person registered as the proprietor of these and, once registered, a registered personality and registered images become legal property rights which can be assigned, licensed and dealt with in the same way as other personal or moveable property. The person who is the registered proprietor of the registered personality and the images registered against it has complete control over those rights. The registered image rights could therefore be placed within a Guernsey structure which can then license, assign or otherwise dispose of the registered image rights and assigning image rights to a Guernsey holding structure, depending upon the circumstances, will have tax advantages.
A registered personality provides the registered proprietor with exclusive rights in the images associated with or registered against that registered personality. Image is defined widely and includes not only photographs, drawings and illustrations of the personnage but also any other distinctive characteristic or personal attribute of a personnage such as voice, mannerisms, gestures and signature. It is therefore possible for "images" as defined in the IRO to be protected even if they are not registered against that personality if it could be proved that a wide or relevant sector of the public associate those images with the personnage.
Infringement of registered image rights is commercial in nature. Only "protected images" can be infringed which means that the images need to be distinctive and have actual or potential value. The infringement principles for registered image rights are similar to the infringement principles for registered trade marks. However, unlike trade mark infringement, protection is not restricted to particular categories of goods and services and registered image rights do not have to serve as a badge of origin.
The provisions of the IRO will only apply and protect image rights registered within the Bailiwick of Guernsey. For there to be infringement of the registered image rights, infringement must take place in Guernsey but infringement could potentially occur where online material uses registered image rights and is accessible in Guernsey. Third parties should therefore take care when publishing or distributing materials or goods in Guernsey, including on websites which may be accessible in Guernsey, not to infringe registered image rights in Guernsey.
It is unknown whether courts of a foreign jurisdiction will be prepared to recognise these registered image rights of Guernsey and whether they can be enforced against a defendant domiciled outside of Guernsey. The recent decision of the UK Supreme Court in the Star Wars Stormtroopers copyright case suggests that if an infringer is domiciled in England or Wales he or she could be sued for infringement in England or Wales for infringement of a foreign intellectual property right. This would require a test case to see if the courts would be willing to recognise Guernsey's registered image rights.
Even if infringement occurs, it is likely that the level of damages awarded in any infringement action would be small given Guernsey's small population. It is therefore more likely that Guernsey's registered image rights will be used as a tax planning tool rather than as a means of preventing unauthorised use of image rights.