Image rights and IP

As an intellectual property lawyer, being asked to advise on “image rights” and how an individual’s likeness and “personal brand” can be protected is not uncommon, but it often comes as a surprise to many that there is no right in UK which specifically protects an individual’s image.

Instead a person’s image is commonly protected by relying on other rights such as copyright in photographs and recordings of the individual; the laws of passing off, defamation and confidentiality and the right to privacy.

Until relatively recently, the issue tended to most frequently arise when a celebrity or person of note was suggested to have an affiliation with a company or to endorse particular goods or services. While that still remains a problem, the era of the deep fake has raised altogether more profound questions about the right to protect one’s image, with unauthorised use of AI generated images ranging from fake porn videos to fictional fisticuffs in the Oval Office.

While many AI generated images are no more than amusing parodies, some are extremely harmful and distressing for those involved. Not only do those victims have the uphill struggle of trying to identify those behind the fake images, they are then faced with the complex and costly task of trying stop the offending use of their image.

The recent proposals by Danish Culture Minister Jakob Engel-Schmidt that would allow Danish citizens to claim ownership of their image and voice is a novel step in trying to address some of the issues caused by deep fake content.

The proposals involve significant development of the law on image rights and could pave the way for individuals to retain greater control over their image and potentially reduce the scope for circulation of deepfake material. The proposals would also increase the responsibility of tech platforms to ensure that such material is not hosted online.

While the concept of the proposed Danish legislation is revolutionary, it will remain to be seen how the provisions can be enforced in practice. Certainly the possibility of being able to identify a specific legal wrong will give claimants a legal basis for court action to prevent use of their image but claimants will still need to identify those responsible and taking legal action against them.

Nonetheless, the proposals have certainly attracted considerable attention and represent a significantly different approach to the policing and control of image rights. The proposals have been welcomed by many as a positive step in combatting deepfake content which has  had a devastating effect on many individuals.

In an increasingly digital work, organisations and individuals have also more digital assets than ever and image and personal brand is key to many businesses. The new proposals provide some of the tools to enable individual to protect their own image.

The lengthy deliberations in the UK Parliament regarding the wording of the recent UK Data (Use and Access) Act 2025 highlighted some of the competing interests which arise in the context of data and content sharing and when and how publicly available information can be used. It will be interesting to see how the drive to increase efficient sharing of data is balanced with the protection of individuals rights and whether similar legislation is introduced in the UK.