APPG on Music report calls for new UK 'personality right'

“Calls in the APPG on Music report for a new, specific UK personality right to protect creators and artists from deepfakes, misappropriation and false endorsement are of great interest and should be given significant weight; however, such proposals should not be rushed into or analysed solely through the lens of AI deepfakes.

"We’ve seen this issue raise its head before, notably when Rihanna had to battle against Topshop for using her image on a T-shirt. Ultimately Rihanna won a claim for ‘passing off’ (i.e., she managed to show that Topshop caused damage to her reputation through their misrepresentation). That judgement clearly stated that such protections are not guaranteed. It’s up to the artist to prove the facts in each case: use of an image of a person on a garment is not, of itself, passing off, particularly where the item is overtly held out as not being an officially endorsed product (for example, by being marketed as “unofficial”), which makes it hard to establish any misrepresentation.

"This seems right: not every use of a person’s face would necessarily be problematic, although, in the case of music artists, their identity is often so intrinsically linked to their brand that it should be protected. Any legislative steps to introduce a “right to personality” under English law would be a significant sea-change to intellectual property rights in this country and would have repercussions across the music industry. For example, contracts underpinning the usage of music (including between artists and their labels) would need to be scrutinised to see where these new rights fall.

"In short, we welcome parliamentary scrutiny in this area but the issues at play may not be as simple as the reports on the APPG on Music’s findings make out.”

Nick and Andrew's comments were published in Law360, 28 May 2024.