A Caution Flag for Celebrity Endorsement in the Digital Era

The result of an English Court of Appeal case, Irvine & Ors v. TalkSport Ltd., confirms that despite the technological advances of the digital era, familiar legal principles continue to apply. The defendant's radio station lawfully acquired rights to a photograph of a celebrity race driver, Eddie Irvine, pictured using a mobile phone against the backdrop of an autosport event.   Without the driver's consent, the defendant altered the photograph to show him listening to a radio - a radio which was graphically indicated as being tuned to the defendant's station.   The altered image was then used by the radio station in marketing kits to promote its coverage of an upcoming major race event. The race driver's management company brought an action for false endorsement (analogous to passing-off) against the radio station.   The defendant asserted that anyone who saw the marketing material would recognize that the photographic image had been altered as a marketing ploy and, therefore, there was no intention to represent that the race driver was in fact endorsing the radio station. Both the trial judge and the Court of Appeal disagreed, holding that knowledge by a viewer – or lack of it – of the digital alteration was irrelevant to the overall impression created, and that most reasonable viewers would conclude that that this was a product endorsement by Eddie Irvine.   Interestingly, the Court of Appeal increased the award of damages from £2000 to £25,000. For the reasons for judgment, visit: http://www.bailii.org/ew/cases/EWCA/Civ/2003/423.html. Summary by:   Peter Wang