Cover Page

Celebrity Personality Rights in Jamaica:

A Path for Development

Authors: Ingrid Pusey and Marc Morgan

Ms. Ingrid Pusey

Ms. Ingrid Pusey BA (Hons) LLB (Hons) LLM (Lond.) is a Senior Legal Officer at the
Financial Services Commission in Jamaica and successfully completed the course of The Law of
Copyrights and Related Rights while reading for the LLM degree at the University of London.

Mr. Marc Morgan

Mr. Marc Morgan, JD, Marquette University of Law, BA, Macalester College is a Legal Officer
at the Financial Services Commission in Jamaica. His scholarly works on Intellectual Property
topics have been published by various legal journals including the Federal Circuit Bar Journal
and the Midwest BLSA Law Journal.

Contact Information

Ingrid Pusey Marc Morgan

39-43 Barbados Ave, 39-43 Barbados Ave,
Kingston 5, Kingston 5,
Jamaica W.I. Jamaica W.I.
Tel: (876)906-3010 Tel: (876)906-3010
Fax: (876)906-3018 Fax: (876)906-3018
Email: puseyi@fscjamaica.org Email: morganm@fscjamaica.org
 Celebrity Personality Rights in Jamaica:
A Path for Development

Abstract

Many outstanding Jamaicans have become international celebrities.  This article demonstrates the

need for Jamaica to capitalize on the opportunities for wealth creation afforded by its celebrities. 

It discusses the current state of the law pertaining to celebrity rights in Jamaica and proposes the

development of legislation that will clarify the law and make it possible for Jamaica to benefit

from the value generated by its celebrities.  An important feature of the proposed legislation is the

creation of an Image Rights Registry in Jamaica that could be a source of government revenue.

The Registry could also serve to stimulate the local economy. 

2
 Introduction

Since Usain Bolt's successes in the 2008 Beijing Olympics, the prevailing notion in

Jamaica has been that “more” should be done to capitalize on the successes of its athletes and

entertainers. In Jamaica’s 50th Anniversary year, and as plans are being charted for the future,

there is cause to pause and assess what “more” can be done to bring this about. After the 2008

Olympics, people raced to the market to capitalize on Usain Bolt’s name, face and image. The

Jamaica Gleaner reported that it found several items bearing the athlete's name placed for sale on

the internet. The items included watches, photo-sculptures and t-shirts. Vendors also took to

streets in Jamaica to make money selling shirts that bore the athlete’s image. Some of the

vendors ended up in a tussle with Usain Bolt's brand management team who, at the time, sought

support from local authorities to put a halt to the vendors' activities.1

Since Jamaica first entered the summer Olympics in 1948, it has been consistently

building an impressive Olympic medal tally. 2 The country has consequently become known

throughout the world as an athletic powerhouse. It is likely the island will continue to produce

talented runners in the future. 3

Since its independence, Jamaica has produced not only astonishing athletes but also other

iconic figures such as Bob Marley4 . Jamaica also continues to be recognized for the

1 Daley, Dianne. 2009. “Jamaica: New Ground on Celebrities' Rights?” Managing Intellectual Property
( May), Accessed February 23, 2012 http://www.managingip.com/Article/2192549/Jamaica-New-ground-
on-celebrities-rights.html
2 Jamaica captured gold and two silver medals. The medals were won by Sir Arthur Lewis and Herb
McKenley.
3 The world is presently witnessing the accomplishments of young Yohan Blake who is thought to be an
upcoming rival for Bolt. Yohan Blake won the gold for the men’s 100 meter sprint race at the IAAF World
Athletic Championships in Daegu, South Korea in 2011.
4 Marcus Garvey (1887-1940) was a journalist, orator , social activist and founder of the Universal Negro
Improvement Association.
accomplishments of icons, such as Marcus Garvey, who died before independence but whose

places in history are no doubt cemented and whose notoriety may yet attract significant value for

their estate.

Jamaica is home to numerous entertainers, sportsmen, playwrights, and beauty queens

who have attained varying degrees of local and international successes. The Jamaican bobsled

team inspired the successful movie “Cool Runnings”. Courtney Walsh, George Headley, Shaggy,

Sean Paul, the Reggae Boys, Sheryl Lee Ralph, Storm Salter, Merlene Ottey, model Jeneil

Williams and Oliver have all carved out their own spheres of notoriety, goodwill and influence or

“celebrity” on an international plane.

The personalities of Jamaica’s celebrities have substantial economic value. In 2009, CNN

Money indicated that the Bob Marley estate struck a deal with Hilco Consumer Capital (“Hilco”)

which was expected to generate annual returns of a Billion United States Dollars (USD) by the

year 2012.5 The deal involved the provision of brand representation and other related services

for the Bob Marley trademarks. 6

Jamaica could gain substantially from the values of its celebrities and should follow the

footsteps of other countries in the world that are now seeking to capitalize on the values of their

celebrities7. This effort includes the settling of the divergent legal approaches to the issue of

celebrity rights. There is a need for legal certainty on this issue and therein lies the opportunity

for Jamaica to do “more” to protect as well as to capitalize on the successes of local celebrities

5 Heinrich, Erik. 2009. “Richest Dead Celebrity: Bob Marley.” CNN Money (November): Accessed February
23, 2011. http://money.cnn.com/2009/11/20/news/companies/bob_marley.fortune/index.htm.
6 Hilco Consumer Capital, Accessed February 23, 2011. http://www.hilcocc.com. Hilco describes itself as a
“specialized private equity firm with an exclusive focus on investing in branded consumer companies”.
7 7. Cornelius, Steve. 2008. “Image Rights in South Africa” The International Sports Law Journal,
(July):
71-75. See also (author unknown). 2011. “Guernsey Could Be a World Leader in Image Rights Laws” BBC
News, Guernsey (August), Accessed February 23, 2011. http://www.bbc.co.uk/news/world-europe-
guernsey-14591952.

4
and celebrities from the rest of the world.

If celebrity personality rights are not protected in Jamaica, local celebrities may go

elsewhere to protect their interests. This may result in the migration of talent and a diversion of

potential economic earnings from Jamaica to other countries. In the context of law and

development, it is important that the law pertaining to celebrity rights in Jamaica be developed in

order to prevent the displacement of skills and capital from its shores.

The authors of this paper propose that a legislative approach should be adopted to address

the issue of celebrity personality rights in Jamaica. The legislation should be driven by four

primary policy objectives: 1.) To identify or define who is a celebrity; 2) To create clarity and

certainty about the law applicable to celebrity rights; 3.) To provide owners of celebrity rights

with incentives to make positive contributions to the development of local businesses, services

and goods; and 4.) To develop affiliated industries focused on the management, trading and

licensing of celebrity rights.

In section I of this paper, we examine the current state of the law pertaining to celebrity

rights in Jamaica and propose that legislation be created to address this area. In Section II, we

propose that an “Image Rights Registry” should be created for the registration of celebrity

personality rights.

A celebrity is defined in the Oxford Concise Dictionary as “a famous or well known

person”. For the purposes of this paper, the word is generally used in that context.

A. The Current State of the Law Addressing Celebrity Personality Rights Calls
for the Creation of Specific Legislation on that Issue.

Throughout the world there are varying degrees of legal recognition of celebrity
personality rights. In most jurisdictions there exists a hodgepodge of laws which have provided

celebrities with limited protection. They include the laws against defamation, breach of

confidence and passing-off; the laws of copyright, trade mark, privacy and data protection; unfair

competition law and the law of contract.8

While it is recognized that the common law is sufficiently dynamic to allow for the

updating of its relevance and applicability, at times it appears that in a bid to secure celebrity

personality rights, the courts have been asked to overreach the true objectives of the law. It is

feared that if such requests are accommodated, this could result in unintended, unforeseen and no

doubt undesirable consequences. As such, it is our view that celebrity rights would be best

addressed by its own distinct and independent set of governing rules and principles.

Take for instance, the law of trademarks.9 It’s traditional function is to distinguish

products by indicating their source of origin; the main issue being "whether the defendant’s use

of the disputed mark is likely to cause confusion among consumers regarding the origin of the

goods offered by the plaintiff”10. It is clear that trademark laws would be of limited avail for a

person whose name is not sufficiently distinctive11 (such as Mary Brown) or in cases where there

is no likelihood of confusion in brand.

Trademark law does not provide a comprehensive tool to protect celebrity image rights.

8 Copyright for instance, traditionally does not protect names Tavener Rutledge Ltd v Trexapalm Ltd [1975]
FSR 479 and Wombles Ltd v Wombles Skips Ltd [1975] FSR 488; the issues of distinctiveness and
confusion of source of origin traditionally factor into trademark decisions . Even after the UK case of Irvine
v Talksport 2 All ER 881 (2003), misrepresentation and goodwill were requirements for passing-off.
9 Under the 1999 Jamaican Trade Marks Act "trade mark" means any sign that is capable of being
graphically represented and capable of distinguishing the goods or services of one undertaking from those
of another undertaking.
10 Mullick, Souvanik and Swati Narnaulia. 2008. “Protecting Celebrity Rights Through Intellectual
Property Conceptions” 1 NUJS L. Rev. (October –December): 615 at 628.
11 Elvis Presley Trade Marks, [1999] RPC 567, per Walker LJ at 585, Accessed February 23, 2011
http://www.bailii.org/cgi- bin/redirect.cgi?path=/ew/cases/EWCA/Civ/1999/964.html

6
In the United States (“U.S”) case of ETW Corp. v. Jireh Publishing, Inc.12 (“The Tiger Woods

Case”), the court said –

…the plaintiff-- asks us, in effect, to constitute Woods himself as a walking,

talking trademark. Images and likenesses of Woods are not protectable as a

trademark because they do not perform the trademark function of designation.

They do not distinguish and identify the source of goods.

This reasoning has been supported in numerous other cases from the US, including the

2010 case of Fifty-Six Hope Road Music Ltd ; Zion Rootswear, LLC and Robert Marley

Foundation Ltd v A.V.E.L.A , Leo Valencia et al. (“The A.V.E.L.A Case”) that was heard before

the District Court of Nevada . In that case owners of the trademark for “BOB MARLEY”

brought actions against a Nevada company, A.V.E.L.A., for using Bob’s images on t-shirts even

though they never used the words “MARLEY” or “BOB MARLEY” as part of their designs.

The judge, after commenting on the Tiger Woods Case and many others remarked that-

Consistent with the above case law, the Plaintiffs’ registered mark BOB

MARLEY does not grant [the] Plaintiffs a trademark in any and all photographs

of Marley. The evidence in the record shows Plaintiffs use of hundreds of

different photographs of Marley on t-shirts and other merchandise. Thus, no

single picture represents a Marley mark … which would act as a source identifier

that is the equivalent to the word mark BOB MARLEY. Plaintiffs’ trademark

claims in this case thus are limited to the registered word mark BOB MARLEY…

12 ETW Corp. v. Jireh Publishing, Inc. 99 F.Supp.2d 829 (N.D. Ohio 2000).
 The court found that Fifty-Six Hope Road Music Ltd, Zion Rootswear, LLC and the

Robert Marley Foundation failed to raise a genuine issue of material fact that the defendants had

infringed upon the “BOB MARLEY” word mark which was the only viable trade mark at issue

in the case.13 The failings of trade mark law to protect personality rights as evidenced in the

A.V.E.L.A decision supports the case for the development of legislation that clearly outlines rights

for celebrities.

In the United States, the right of publicity is recognized in many states in order to protect

a person’s name, voice, likeness or other indicia of personality, from the commercial exploitation

of others. In Canada, the tort of “appropriation of personality” serves a similar purpose. The

United Kingdom, however adopts a more conservative approach and their courts have been

slower to recognize personality rights. However, even in more progressive countries where the

distinct right exists, the laws are not fully developed and courts still struggle to articulate its

boundaries. There is no clear or uniform international approach to the problem.

a. The Jamaican Position

The issue of celebrity rights was considered by the Jamaican Supreme Court in 1994 in

the case of The Robert Marley Foundation v. Dino Michelle Limited (“The Dino Michelle

Case”)14. The facts, briefly, were that the defendant sold T-shirts bearing Bob Marley’s name and

likeness without authorization from the licence holders of Bob Marley’s estate. The judge

13 A.V.E.L.A. Case. However, while the court did not allow the claim based on traditional trademark
infringements, the plaintiffs were successful on grounds of unfair competition under the federal Lanham
Act. Provision § 1125(a) of the Lanham Act has often been used by the courts in the US to permit
celebrities to assert an unfair competition claim where another person uses the indicia of their personality
without permission, so as to suggest a false endorsement or association.
14 The Robert Marley Foundation v. Dino Michelle Limited, CL R115/1992 (Supreme Court of Jamaica 1994).

8
identified the torts of “passing off” and "appropriation of personality” as the legal bases for the

protection of Bob Marley’s name and image in the circumstances. Clarke J found that the

defendants’ actions satisfied the conditions for passing off outlined in Clerk & Lindsell on Torts

16th edition 30 in that -

(1) …the plaintiff's business comprises selling in [Jamaica] a class of goods to

which the particular trade name [face, likeness or image] applies;(2) … the name

[face likeness or image] is distinctive of the plaintiff's goods;(3) … goodwill is

attached to the name [face, likeness, image] and is the plaintiff's;(4)… the

defendant had made a representation;(5) …he has done so in the course of trade to

customers or ultimate recipients of the goods;(6)… the business or goodwill of the

plaintiff is really likely to be damaged

On considering the facts of the case the learned judge concluded that -

By manufacturing and selling T-shirts bearing Bob Marley's image or likeness and

the appellation, "Bob *1948~1981", the defendant has misled the public to believe

that an association, be it commercial or otherwise, exists between the plaintiff and

the T-shirts being sold by the defendant.

Clarke J noted that the law with respect to passing-off protected goodwill and that there

was no question that there was goodwill attached to Bob Marley’s name and likeness. Quoting

Clerk and Lindsell, he stated that “There can … be no valid cause of action for passing off if

there is no invasion of the goodwill of a trader's business by a false representation made by

another trader in the course of trade”. He further indicated that whilst there was no evidence that
Bob Marley was involved in the making or selling of t-shirts, Bob Marley’s proprietary right in

his goodwill was injured or “invaded” by the defendant’s misrepresentation.

On the issue of “appropriation of personality”, the judge reiterated that the law in Jamaica

recognized property rights attached to the goodwill that was generated by a celebrity's

personality and stated that such rights would be violated if “the indicia of a celebrity’s

personality” were commercially exploited in a manner that resulted in the unjust enrichment of

another person. His explanation of the tort and its application to the facts may be best understood

using his own words. He explained-

I hold...that Bob Marley, a celebrity of renown at home and abroad, had a right to

the exclusive use of his name and likeness or image. The right entitled him to

exploit it commercially. He could, for instance, for a fee, license persons to use

his name and likeness etc. for commercial gain. That right survived his death. The

plaintiff is the assignee of that right in Jamaica. And as the statement of claim

pleads, the plaintiff is invested with the proprietary right in the exclusive

marketing for gain in Jamaica of the license to use his image, photograph, name,

all indicia of his personality. In my judgment, the commercial use of Bob Marley's

name and likeness or image by the defendant without the plaintiff's consent

constitutes an invasion or impairment of the plaintiff's exclusive right as aforesaid

resulting in damage to the plaintiff. Such conduct on the defendant's part

constitutes the tort of appropriation of personality, separate and distinct from the

tort of passing off.

From this case, it is clear that Jamaican law recognizes a civil wrong, known in Canada

10
as "appropriation of personality" for the commercial use of the name, likeness or image,

expression or other distinctive characteristics of a celebrity without his or her consent. The

Court, in the Dino Michelle Case, was of the view that the tort of appropriation of personality

consists of “the appropriation of a celebrity’s personality…for the financial gain or commercial

advantage of the appropriator, to the detriment of the celebrity or those claiming through him or

her”. This approach differs from the tort of passing off because it does not require proof that the

origin or affiliations of the goods or services had been misrepresented.

b. The need for legislation

The Dino Michelle judgment, though progressive and useful in protecting Jamaica’s

celebrities, does not meet the immediate needs of the country to capitalize on the economic

benefits that our celebrities may draw. The application of the law of passing off, though far-

reaching is still somewhat restrictive in that it requires misrepresentation. It is further submitted

that the tort of appropriation, though recognized as a distinct tort, has not yet been fully explored

or developed by our local courts. Although case law provides some amount of certainty it

evolves at a slower pace than legislation. The timely development of industries around celebrity

rights could be stymied if the necessary guidance that the law gives are determined only when

issues are brought before the court.

In the Dino Michelle Case the Judge responded to the particular set of facts before him.

What would have been the outcome had the defendant been a Rastafarian painter in the Montego

Bay Craft Village who made a one-off sale of a painting he made in tribute to his hero Bob

Marley?
 The judge in the Dino Michelle Case, made mention of the Australian case of Radio Cor-

poration v. Henderson 15 in support of the view that “exceptional features on public policy

grounds” could displace a passing off claim. The court however, did not provide sufficient guid-

ance on this point as far as it related to celebrities. In relation to the tort of appropriation, this is-

sue was not addressed and requires immediate clarification.

Canadian authorities such as Krouse v Chrysler16 (1973) had significant persuasive effect

in the Dino Michelle Case and influenced the courts in recognizing distinct personality rights in

Jamaica. However, the Canadian jurisprudence has developed well beyond that which was ex-

pounded in the Dino Michelle Case particularly concerning the boundaries of protection for

celebrities. In jurisdictions such as Ontario celebrity rights are being developed around the tort

of appropriation. However, in Quebec, much emphasis has been placed on the Charter17 right to

privacy. (Aubry v Éditions Vice-Versa Inc (1998)). 18

In relation to the tort of appropriation, the Ontario courts have expressed the view that it

is not without its limits. In the case of Gould Estate v. Stoddart Publishing Co. (1996)19 the

court, though recognizing a person’s propriety right to the exclusive marketing of his personality,

expressed the observation that this right was usually restricted to “endorsement-type” situations.

Lederman J cautioned that public interest should be balanced when considering the tort and

warned of the danger of giving it too broad an application. In support of this view he made refer-

ence to the warning by the court in Krouse that “[t]he danger of extending the law of torts to

cover every … exposure in public not expressly authorized is obvious”.

15 Radio Corporation v. Henderson [1960] N.S.W. 279, 282.
16 Krouse v Chrysler, 1 O.R. (2d) 225 (Ont. C.A.1973)
17 Charter of Human Rights and Freedoms
18 Aubry v Éditions Vice-Versa Inc, 78CPR (3d) 289 (SCC) (1998)
19 Gould Estate v Stoddart Publishing Co, 74 CPR (3d) 206 (Ont Ct Gen Div) (1996), aff’d on different
grounds, 39 OR (3d) 545 (CA) (1998) leave to appeal to SCC refused, 236 NR 396 (note) (SCC) (1999),

12
 In Krouse supra, the Ontario Court of Appeal also expressed at p. 240 O.R., p. 30 D.L.R.

that:

Progress in the law is not served by the recognition of a right which, while helpful

to some persons or classes of persons, turns out to be unreasonable disruption to

the community at large and to the conduct of its commerce.

In a bid to clarify the boundaries of the tort of appropriation, Lederman J devised a “sales

versus subject” distinction which differentiated circumstances where the predominant object of

the appropriation amounted to commercial exploitation through sales from circumstances where

the celebrity is the subject of the work. Only the former would give rise to the tort of appropri-

ation of personality. In light of the foregoing, the judge ruled that the publishing of a book about

Gould containing portraits of him (without authorization from his estate) did not amount to the

tort of appropriation of personality. This approach was endorsed by the Ontario Superior Court of

Justice in Shaw v. Berman, (1997)20. However, one should also note the case of Horton v. Tim

Donut Ltd21 in which the court explained-

Unlike the facts in Krouse, Athans, and Gould, the concept of TDL was developed

by Tim Horton and Ronald Joyce with a view to exploiting the commercial per-

sonality of Tim Horton in the restaurants which bear his name and image. ...if I

apply the reasoning in Krouse and Athans to these facts, I do not see how the

hanging of the portrait in stores which already represent the commercial personal-

20 Shaw v. Berman, 1997 CanLII 12361 (ON SC).

21 Horton v. Tim Donut Ltd 75 CPR (3d) 451, 458 (1998).
 ity of Tim Horton, raises a triable issue that amounts to a lost marketing opportun-

ity for the estate.

If I apply the broader analysis proposed in Gould, I am of the view that the

plaintiff’s claim similarly raises no triable issue. The portrait in question had as its

purpose a charitable object.

They further explained-

It is inescapable and uncontradicted that the predominant purpose of the portrait is

charitable and commemorative. It is neither exploitative, nor commercial. Its pur-

pose and effect is to perpetuate in a dignified and creative fashion the memory of

Tim Horton. Just as the author in Gould, added his own creativity to the book on

Gould’s life, so here, has Mr. Danby sought to express through his artistic talent, a

portrayal of a great Canadian sports figure. In my view, this is of as much public

interest to the sports world as a book on Mr. Gould’s life is to the music world.

Any commercial purpose is incidental at best. Accordingly, the portrait falls into

the protected category (to use the words of Lederman J.) and there is no right of

personality in Tim Horton which has been unlawfully appropriated. In summary,

whether the action arises from the loss of an endorsement-type situation, or

whether it arises on the “sales vs. subject” distinction discussed in Gould, there is

no evidence which raises a genuine issue for trial on this issue, and, as a matter of

law, the claim cannot succeed.

This line of reasoning may assist the painter who develops a one-off portrait in homage to

Bob Marley. There is no endorsement at risk and this scenario would present a prime opportunity

14
for the courts to conduct the careful balancing exercise that was advocated in Krouse and Gould.

Such an exercise should not ignore Jamaica’s new Charter of Rights for even in Gould the lower

court remarked that –

While Canada does not have a constitutional provision akin to the First Amend-

ment which is applicable to the private law, no principled argument has been ad-

vanced to suggest that freedom of expression considerations should not animate

Canadian courts in identifying the public interest and placing limits on the tort of

appropriation of personality.

Constitutional rights signal important public interest considerations that are relevant for the bal-

ancing exercise.

c. The issue of the Jamaican Charter

The bases and boundaries of protection for a celebrity’s personality need to be understood

in the context of Jamaica’s new Charter of Rights. The strength and scope of protection for

celebrity rights can perhaps be viewed according to whether or not such rights are protected un-

der the Charter. For instance, if celebrity rights are protected by the right to privacy, they would

(being fundamental rights), extend beyond celebrities to every human being. It is said that in

those circumstances, any associated torts should be actionable per se since it may be difficult for

those who do not normally profit from or market their personality to prove damages.22

22 Jarvis-Tonus, Jill and Meghan Dillon. 2010. “Dual Protection for Personality Rights.” World Trademark
Review (October/November ): 90-91.
 In looking at Constitution/Charter judgments from other jurisdictions that have similarly

worded human rights provisions, it was noted that there are instances where overseas courts have

held that the protections afforded by the Constitution/Charter in question, extended to personality

rights.

In the Aubry Case (supra), the successful plaintiff was an ordinary and previously un-

known individual. The court in Quebec indicated that the right to one’s image was an element of

the right to privacy under s.5 of the Quebec Charter which states that “Every person has a right

to respect for his private life.”

The judges explained that-

Since the right to one’s image is included in the right to respect for one’s

private life, it is axiomatic that every person possesses a protected right to his

or her image.  This right arises when the subject is recognizable.23  There is,

thus, an infringement of the person’s right to his or her image, and therefore fault,

as soon as the image is published without consent and enables the person to be

identified.  See Field v. United Amusement Corp., [1971] C.S. 283. (Emphasis ad-

ded)

It appears that court may have based its reasoning on “dignitarian” philosophies which

are characteristic of lofty analyses of the “right to one’s private life” rather than on the economic

pragmatism that we advocate. The court in Aubry explained -

23 See also Joseph v. Daniels, CanLII 1106 (BC SC) (1986).

16
 … the purpose of the protection accorded to privacy is to guarantee a sphere of in-

dividual autonomy for all decisions relating to “choices that are of a fundament-

ally private or inherently personal nature” (para. 98). If the purpose of the right to

privacy guaranteed by s. 5 of the Quebec Charter is to protect a sphere of indi-

vidual autonomy, that right must include the ability to control the use made of

one’s image, since the right to one’s image is based on the idea of individual

autonomy, that is, on the control each person has over his or her identity…

Section 13 (3)(j) (ii) of Jamaica’s Constitution protects “the right of everyone to…respect for and

protection of private and family life” and if the reasoning in Aubry finds favour in our local

courts, this too could form the basis of protection of personality rights in Jamaica.24

d. The Propriety of Property

Another possible basis for the constitutional protection celebrity rights is section13 (3) (j)

(iii) of the Constitution which makes it clear that the right to privacy goes beyond protection of

the home to the protection “other property”. The word “property” is not defined in Jamaica’s

Constitution. In some Common Law jurisdictions the courts have indicated that the word “prop-

erty”, where undefined in a Bill of Rights, should be given the widest possible meaning. 25 Tom
24 In the book “The Commercial Appropriation of Personality” Huw Beverley-Smith pointed out that “The Quebec
Charter… has horizontal effect, and the rights and freedoms it guarantees may be relied on by parties in private liti-
gation”. This too is the position in relation to the new Jamaican Charter.
25 Financial Clearing Corp v Attorney General Commonwealth of the Bahamas Supreme Court, 2001 S ee al so
At t orney- General of t he Gambi a v. Momodou Jobe 3 W.L.R . 174 (1984) i n whi ch Lord
Di pl ock, deal i ng wi t h the Const i t ut i on of t he Gam bi a sai d, at page 183: -" A C onsti t ut i on and
i n part i cul ar t hat part of it whi ch prot ect s and ent renches fundam ent al ri ght s and freedom s to
whi ch al l persons i n t he S t at e are t o be ent i t l ed, i s t o be gi ven a generous and purposi ve
const ruct i on."

In the case of R (On t he Appl i cat i on of A Gi bral t ar Company) v Fi nanci al Servi ces
C ommi ssi on (Gi bral t ar C ourt of Appeal ) (2003) t he Gi bral t ar C ourt of Appeal used t he
Int erpret at i on and General Cl auses Ordi nance t o gui de t hem as t o t he m eani ng of t he word
Allen in his treatise Right to Property in Commonwealth Constitutions 26
pointed out that intan-

gible property such as patents27 and even goodwill have been recognized as falling within the

meaning of the word “property” when used in certain Constitutions. Support for that view can be

found in the case of Société United Docks v Government of Mauritius; Marine Workers Union v

Mauritius Marine Authority [1985] AC 585, which, inter alia, considered the question of whether

the loss of goodwill amounted to a deprivation of rights under the Constitution. The Privy Coun-

cil explained that if the impugned Act had deprived the appellants of any goodwill,

then the appellants would have been entitled to compensation equal to the value

lost. Since goodwill is an essential element in celebrity rights, it is open to the Jamaican courts

to find that section 13 (3)(j)(iii) protects such rights.28

e. Balancing Rights

With assertions of Charter rights and claims of Charter infringement come the inevitable

“propert y” for the purposes of the const it ut i on. The Ordi nanc e’s wi de defi ni ti on, whi ch
i ncl udes choses i n act i on i s sim i l ar to t he defi ni ti on of propert y i n Jam ai ca’s Int erpret at i on
Act . The court in t he Gi bral t ar case found t hat inform at i on di d not fal l wit hi n t he defi ni t i on
but docum ent s woul d. S ee al so t he Fi nanci al Cl eari ng C ase (S upra).

26 Allen, Tom. 2000. “The Right to Property in Commonwealth Constitutions.” Cambridge University Press, Cam-
bridge: 161.
27 Smith, Kline & French Laboratories Limited v. Attorney General of Canada, 1 F.C. 274 (1986).
28 In Madan Mohan Pathak v Union Of India & Ors_ Etc (1978) the judge said –
“It is clear from the scheme of fundamental rights embodied in Part III of the Constitution that the guarantee of the
right to property is contained in Article 19 (1) (f) and clauses (1) and (2) of Article 31. It stands to reason that
'property' cannot have one meaning in Article 19(1) (f), another in Article 31 clause (1) and still another in
Article 31, clause (2). 'Property' must have the same connotation in all the three Articles and since these are
constitutional provisions intended to secure a fundamental right, they must receive the widest interpretation
and must be held to refer to property of every kind. … it includes ownership, estates and interests in corporeal
things, and also rights such as trade-marks, copyrights, patents and even rights in persona capable of transfer or
transmission, …having a money value, especially with reference to transfer or succession, and to their capacity of
being injured". It would, therefore, seem that…debts and other rights in personam capable of transfer or transmis -
sion are property which can form the subject- matter of compulsory acquisition. And this would seem to be unques -
tionable on principle, since even jurisprudentially debts and other rights of action are property and there is no reason
why they should be excluded from the protection of the constitutional guarantee.”

18
question of the balancing fundamental freedoms. The Quebec court in Aubry, balanced the

defendant’s freedom of expression with the plaintiff’s right to privacy.29

The court in Aubry, found no justification based on the facts before it, for the abrogation

of the plaintiff right to privacy in circumstances where her photograph was published in an art

magazine without her consent. They however, provided some guidance as to the circumstances

where the court could find that no infringement of the right to privacy had occurred. For

example-

a. where the person in the image is in a public place and is incidental to the

photo, rather than the subject;

b. a photograph of someone in a crowd at a sporting event or a demonstra-

tion; and

c. where “an individual’s own action, albeit unwitting, accidentally places

him or her in the photograph”.

The court also noted that the “public interest in being informed may take precedence

where the subject is engaged in public activity or has gained notoriety or finds himself in a high-

profile role in a matter within public domain”. Public interest may take the form of education,

culture, journalistic freedom and so forth. An illustration is seen in a decided case from China in

which a sibling of the late Emperor Aisin Giorro Pu Yi was not able to assert the Emperor’s im-

age rights as the court held that his historical significance placed his “image” in the public do-

main.30

29 See also the US case of Comedy III Productions, Inc. v. Gary Saderup, Inc. 25 Cal. 4th 387 (2001). In
balancing the First Amendment and the right to publicity, the Court considered whether the work adds significant
creative elements as to be transformed into something more than a mere likeness or imitation with an overall
goal to explore the subjects name for profit.
30 Challis, Ben. 2007. “United Kingdom: The Right Image? Does The UK Need A Stand Alone Image Right
 f. The legislative solution

The above discourse demonstrates the uncertain state of personality rights which

underscores the urgency of putting in place clear legislation to facilitate efficiency in the

economic consumption of celebrity value. This would prevent situations as occurred in Gould on

appeal before the Ontario Court of Appeal when Findlayson J indicated that he would have based

the decision on “conventional principles relating to copyright” rather than the “relatively new

development” of the tort of appropriation.31 He seemed to have been suggesting that where one

can find a sound basis for infringement in the traditional areas of law, then that should be

preferred over the newly developing tort. Such decisions would not auger well for the economic

environment as they create the very conditions of uncertainty that are to be avoided. Given the

strong and immediate interest in locally protecting the commercial value of Jamaican

personalities, instead of allowing the law to evolve through incremental changes to our common

law, we propose that the protection of personality rights be tackled legislatively.

Furthermore, one cannot overlook the fact that the Dino Michelle Case was decided at the

Supreme Court level and until appeals from the Privy Council are fully abolished, there is a fear

For The New Millennium?” (January): 19. Accessed February 23. http://www.mondaq.com/article.asp?arti-
cleid=45756

31 In the case of Glen Gould Estate v. Stoddart Publishing Co. Ltd.,1998 CanLII 5513

Finlayson JA said:

“In my opinion, it is not necessary to decide the issues in this case on the basis of the relatively new development in
tort of appropriation of personality when this case so clearly sounds in intellectual property …Gould consented,
without restriction, to be the subject matter of a journalistic piece, he cannot assert any proprietary interest in the fi-
nal product nor can he complain about any further reproduction of the photographs nor limit the author of the jour-
nalistic piece from writing further about him...I am not persuaded that I should analyze the facts of this case in the
context of a claim for misappropriation of personality. I am satisfied that it can be disposed of on conventional intel-
lectual property lines and there is no necessity to explore any balance between privacy rights and the public’s inter-
est…”

20
that there could still be the possibility that in a case on similar facts, the Privy Council may hold

a different view on the protection of personality rights than enunciated in the Dino Michelle

decision. In the UK, the protection of celebrity rights is in a state of fluidity. Since the Irvine v

Talksport Case32 passing –off has served as a useful, though still insufficient, tool for protection.

Recently privacy issues have crept into the UK debate on the protection of images in light of the

European Convention for Human Rights (“ECHR”) in cases such as Douglas & Ors v Hello Ltd.

& OrsG 33 which was ultimately decided on principles of confidence34 . It is therefore unclear

what the attitude of the Privy Council would be on such matters. Legislation could resolve such

uncertainties.

We believe a legislative solution will allow for the appropriate balance to be struck

between a celebrity’s right to protect his personality and constitutional rights or other “public

interests” considerations which exist to protect the freedom of expression and to allow

individuals to seek, receive, distribute or disseminate information, opinions and ideas through

any media.

We also believe that a legislative solution would provide the opportunity to create a

celebrity registry which, if designed properly, can positively impact jobs and the economy of

Jamaica.

g. Features of the proposed legislation

32 Supra note 8
33 Douglas & Ors v Hello Ltd. &OrsG [2006] QB 125. In this case the Court of Appeal, focusing on the issue of
breach of confidence, awarded what the House of Lords later described as modest damages to the Douglases on the
basis that photographs of their wedding plainly portrayed aspects of their private lives and fell within the protection
of the law of confidentiality. See also Campbell v MGN Ltd. [2005] UKHL 61.
34 Note that by virtue of the Human Rights Act1998, the UK gives effect to specified rights under the ECHR
 After careful study, it is submitted that celebrity rights legislation should be developed

with the features that are set out below.

a. The Celebrity rights legislation should indicate who it protects. It is pro-

posed that the legislation should be limited to celebrities. The word

“celebrity” should be properly defined to clearly indicate the categories

of persons who the word captures. There are decided cases that have out-

lined the factors that may be used as guides for determining the qualifica-

tions for being a celebrity. 35 Persons not falling within these categories

could assert any common law or constitutional rights for personality pro-

tection that may exist.

b. The legislation should clearly indicate the attributes of celebrity that

should be protected under the statute such as the name, photograph,

voice, likeness or image, distinctive expressions or other characteristics

that serve as indicia of a celebrity’s identity.

c. It should establish the celebrity right as an asset capable of valuation36

and trading.

d. It should provide for the establishment of a registry that would serve as

the record of ownership of celebrity rights. It should establish a proper li-

censing regime to be administered by the registry and clear guidelines as

35 See e.g. Henderson v. Radio Corp, (Supra). The New South Wales Supreme Court looked at the publicity enjoyed
by the plaintiffs through their live and television public performances, lectures, demonstrations, articles,
photographs and press advertisements.
36 It is said that “Governments clearly have power to create property rights when appropriate to
cure or ameliorate market failure problems.” Taken from Privacy as Intellectual Property?
by Pamela Samuelson See, e.g., Radin, Margaret Jane, 1996 “Property Evolving in Cyberspace”, J. L. & Comm. 15:
509, 514-518 (discussing utilitarian criteria for creation of property rights).

22
 to what would amount to the waiver of rights or implicit consent for ap-

propriation.

e. The legislation should make it clear when the right should be asserted to

avoid the wavering of the court as occurred in Gould.

f. It should also clearly outline what constitutes the infringement of a

celebrity’s rights and the relief that would be available for infringements.

g. The legislation should prescribe exceptions or permissible uses by others

and the conditions of the use.

h. It should deal with issues such as transferability, survivability and the

duration of the rights.

This list is not exhaustive.

It will be important that the level of protection that will be afforded under the legislation

is not crafted too strictly so that it is easier for persons outside Jamaica to exploit our local

celebrities. On the other hand if the level of protection is too lax, our celebrities may go

elsewhere for protection.

Jurisdictional issues should also be addressed. An unfortunate situation occurred in the

US case of Cairns v Franklin Co37. The trustees of the Diana Princess of Wales Memorial Fund

(“the Fund”) and the executors of Princess Diana’s estate failed in their bid to assert publicity

rights under California Law as the court ruled that, based on California’s choice of law

principles, UK law should apply being the place of the Princess’ domicile. Great Britain does

not recognize a discernable right of publicity. The result was that although California law

recognized publicity rights it did not avail the plaintiffs in the Californian Court. The anomalous

37 Cairns v Franklin Co 292 F.3d 1139 (9th Cir. 2002)

effect was that a Californian citizen was able to freely exploit the personality rights of a person

domiciled in the UK but could not do so in respect to a person domiciled in California .While this

might not be the case in all jurisdictions, we should seek to avoid such a result for our celebrities

by ensuring that our legislation is on par with the most progressive jurisdictions.

B. Providing Celebrities with Incentives to Own Local Businesses and to

Endorse Local Goods and Services.

The haste to bring greater certainty to the law stems from the need for Jamaica to

capitalize on the wealth that its valuable human resources may draw. The possibilities for doing

so may be as limited as our imagination. The sad truth is that there is a tendency for emerging

economies to look to the developed world and international bodies for answers to determine what

is possible and what may be done. The developed world seems to have little constraints in

devising their own solutions to the problems they face and in charting new courses for mankind.

Recently, the Bailiwick of Guernsey, a small channel island which is a dependency of the

British Crown, announced its intention to create an Image Rights Registry by way of legislation.

The legislation will provide protection for image, personality or “publicity” rights and will re-

cognize such rights as “definable” assets. The island seeks to exploit a market opportunity

presented by the “high-value and cutting-edge market developments in sports rights, contract

terms, appearance and endorsement rights associated with the personality.”38They intend to at-

tract celebrities and their wealth to the island of Guernsay and they are seeking to launch this ini-

tiative in time to capitalize on the staging of the 2012 Olympics in London.

38 2009, “Proposal from Billet D’Etat” (September), Accessed February 23, 2012,
http://www.gov.gg/CHttpHandler.ashx?id=3441&p=0.

24
 The effort will no doubt provide a strategic benefit for Guernsay in a climate where the

off-shore financial services industries of the world are being frowned on by the international

community. While Guernsey may be first in line, they recognize that other countries may become

soon competitors in this niche area and so they have worked to be ahead of the curved. Jamaica

should embark on a similar venture as a way to capitalize on the value of Jamaica’s celebrities.

Jamaica may have a comparative advantage in being a recognized home of celebrities. The

selling point would be that Jamaica has its own celebrities to protect and so has a stake in ensur-

ing that it has a robust legal framework and other mechanisms for the protection of celebrities. In

order to derive maximum benefits from this endeavour, it should embark on this initiative early

and devise ways to ensure that it works.

It is therefore being proposed that an “Image Rights Registry” should be created in Ja-

maica by means of legislation. The Jamaican Intellectual Property Office (“JIPO”) would be the

organization best suited to have responsibility for the operation and oversight of the Registry.

Since 2001, JIPO has had regulatory oversight over trademarks, copyrights, patents and other in-

tellectual property rights in Jamaica. This means that JIPO has over 10 years of regulatory exper-

ience of intellectual property rights that can be applied to the development and the operation of

an Image Rights Registry.

Criteria will have to be set to determine which local and international celebrities qualify

for registration of personality rights in the registry. The qualifying criteria that celebrities must

meet to be registered in the Registry should be outlined in the enacting legislation. Applicants for

registration in the registry would have to submit supporting documents that demonstrate the ex-

istence of distinctive character that has surpassed a predetermined threshold of goodwill. To

demonstrate distinctive character and goodwill, applicants can submit evidence of publicity. Pub-
licity would measure the international attention the celebrity has received through public per-

formances, radio, television, lectures and demonstrations, written articles and advertisements.39

Registration applications could also be supported by expert evidence, survey evidence and res-

ults from focus groups. Courts in other Commonwealth jurisdictions have admitted such evid-

ence when determining goodwill.40 It is further submitted that qualification should not be limited

to individuals but should include clubs and entertainment groups such as bands.

The registry could serve to generate revenue for the Jamaican Government in the form of

registration fees, renewal fees, transfer fees and other associated fees that would be charged. The

applicable fees should be at a commercial value set at a level that would discourage frivolous ap-

plications and that would cover the development and operation costs of the registry. Applications

to register in the registry would be induced by three forces- (1) As discussed earlier, registration

would provide celebrities with the clarity and certainty that would accompany a statutorily

defined right and protection; (2) Celebrities would have an incentive to apply to the registry to

benefit from tax incentives; and (3) they would also apply because registration could be used as

collateral evidence in other countries as to a celebrity's intent to protect his/her personality rights.

The government can use the registry as a transparent and formal mechanism to reward

local celebrities with tax benefits. Qualifying celebrities registered in the registry should benefit

from tax incentives designed to induce their registration as a means to generate revenue for the

government, reward their productivity, and encourage them to drive the development of the local

economy. In recent times there have been calls through various forums for different tax rates to

be applied to local athletes.41 These incentives can be provided in an organized and transparent

39 See e.g. Henderson v. Radio Corp, (Supra).

40 E.g. Telstra Corp Ltd v Royal & Sun Alliance Insurance Australia Ltd (2003) 57 IPR 453 (2003).

41 Roache, Alicia. 2011. “Different Tax Regime Needed for Jamaican Athletes”, Jamaica Observer, ( April),
Accessed February 23, 2012 http://www.jamaicaobserver.com/business/Different-tax-regime-needed-for-
Jamaican-athletes_8695486; and Richardson, Julian, 2011 “Sporting Fraternity batting for Tax Breaks”,

26
manner to celebrities registered in the registry. However, consideration should be given to

providing incentive not only to athletes, but also entertainers and other celebrities in order to

facilitate the use of their personality rights for the benefit of the Jamaican economy.

The registry could assist the government with their quest to accomplish greater tax

compliance. There have been public battles between entertainers - such as Beenie Man, Bounty

Killer and Elephant Man - and the tax authorities which have resulted in the seizure of assets.42

There also have been complaints from the tax authorities about revenue lost from taxes that have

not been paid by athletes.43 The provision of a lower local income tax rate for celebrities, who are

registered in the registry and certified to be tax complaint, could provide an incentive for greater

overall tax compliance.

A lower tax rate for the local income of celebrities would encourage celebrities to act-

ively use the commercial value of their personalities in ways that positively benefit the Jamaican

economy. The significant impact that a celebrity's image or personality can have on a business

should not be underestimated. For example, according to The Guardian, shortly after the 2008

Olympics, Usain Bolt's star appeal created USD $250 million in publicity value for the German

shoe and sportswear company Puma. At the time, Puma was said to have been paying Bolt USD

$1.5 million per year which amounts to only a fraction of the publicity value he generated for

them.44 Encouraging celebrities whose faces are household names across Jamaica and the world

Jamaica Observer (July), Accessed February 23, 2012 http://www.jamaicaobserver.com/business/Sporting-

fraternity-batting-for-tax-breaks_6953918.
42 Campbell-Livingston, Cecilia. 2010. “Jamaica Observer, Entertainers, Authorities argue over Tax
Assessment Method” Jamaica Observer (September), Accessed February 23, 2012
http://www.jamaicaobserver.com/
entertainment/Entertainers—authorities-argue-over-tax-assessment-method_7933734.
43 Helps, HG, 2010, “$100m In Lost Sports Taxes” Jamaica Observer ( July), Accessed February 23, 2012
http://www.jamaicaobserver.com/news/100m-in-lost-sports-taxes_7806077.

44 Kollewe, Julia. 2009. “Champion sprinter Usain Bolt helps Puma Trainers fly out of Shops.” The
Guardian (August), Accessed February 23, 2012 http://www.guardian.co.uk/business/2009/aug/23/puma-
usain-bolt-trainers.
to use their personality or goodwill for the benefits of local business activities can create jobs,

and enable local businesses to enhance their market presence and expand their present markets to

international regions. Jamaica’s celebrities may add significant value to brand Jamaica generally

as well as to specific local products. In India, Japan and China celebrity branding is big business

and a deliberate strategy for the growth of the economy so much so that it has been criticized for

being overused.45. Raj M of the Asia Times On-line reported that –

"India is such a celebrity-driven country," Anirban Das, Globosport's vice

president, told Asia Times Online from Bangalore. "Coastal China and Hong

Kong see [the same phenomenon] to some extent, but a large section of India

mostly lives out its lives in fantasies in entertainment.46

The location of an Image Rights Registry in Jamaica, designed to attract registration

applications from local and international celebrities, can stimulate the creation of local industries

centered on the protection, development and management of celebrity rights. Celebrity Rights

are considered to be very valuable assets for celebrities and may provide more income for a

celebrity than his or her performance and appearance fees.

The legislative recognition of celebrity rights in Jamaica could also provide the basis for

the securitization of those rights which would aid in the financial management and capitalization

of the rights. As Jamaica looks for new opportunities for wealth creation for its citizens, it could

consider intellectual property securitization as an avenue for doing so. This would provide the

4545. Chan, Kimmy W. , Kineta Hung and Caleb Tse. 2011. “Assessing Celebrity Endorsement Effects in
China, A Consumer-Celebrity Relational Approach” Journal of Advertising Research (December).
46 Raja M. 2006. “Celebrity Branding Sweeps India”, South Asia, (January), Accessed February 23, 2012
http://www.atimes.com/atimes/South_Asia/HA21Df01.html.

28
owners of the rights with upfront funds from future projected income streams to be gained from

licenses, royalties and so forth. It would also provide new investment products for potential

investors.47

This product may be suitable only for those with a medium to high risk appetite. For this

to work, the underlying assets should be valued at market, cash flows should be analyzed to

determine trends with a high degree of predictability, provisions for liquidity should be

established and maintained (perhaps through a fund or reserve for the benefit of investors) and

proper regulation should in place to ensure full and fair disclosures to investors concerning

matters such as the risks associated with the products. The term of the bonds should be calibrated

to reduce risks depending on the expected life of the celebrity. Thus, one could offer longer term

bonds for icons and legends such as Bob Marley and Michael Jackson and shorter term

instruments for less celebrated entertainers.48

Celebrity often does not always confine itself to geographical boundaries and many of

Jamaica’s celebrities have international acclaim. In its bid to encourage the repatriation of

celebrity wealth and attract overseas celebrities to use the Registry, Jamaica should secure the

necessary double-taxation treaties with overseas jurisdictions where our celebrities are

concluded.

Finally, one cannot sufficiently underscore the role that a country’s legal landscape plays

in its economic development. It is important that any perceived inefficiencies in the justice

47 In the US, transactions backed by the royalty income generated by music have been securitized. The most
commonly known are the 10 year “Bowie Bonds” based on royalty income from David Bowie’s music
catalog receipts. Similar bonds have been issued in relation to James Brown, the publishing rights owned
by the songwriting trio Holland, Holland and Dozier and other persons in their music industry.
48 Duff & Phelps Credit Rating Co also suggested that inflows should perhaps be placed with a special
purpose vehicle, perhaps a fund, which was “bankruptcy –remote” in that it “has a first-priority perfected
security interest in the assets for the benefit of the note holders”. Such investment products should only be
offered under a suitable regulatory regime. It could assist celebrities such as athletes to provide for their
immediate needs such as the funding of training and health bills.
system (such as backlogs) should be addressed and the legal profession in general should be

sensitized early to the new regime since foreigners will not take their business to a country unless

they are of the view that matters affecting their business interests would be handled in an

expeditious and sophisticated manner. It is also important to bring the whole body of intellectual

property law up to a standard that adequately addresses modern concerns. In doing so, Jamaica

would enhance its reputation as an intellectual property services provider and could perhaps

serve as a one-stop international shop for protecting intellectual property rights. To preserve

celebrity, laws targeting conduct in certain regulated areas such as sports should be developed

and enforced (e.g. anti-doping laws).

CONCLUSION

Jamaica is a country that has produced many iconic celebrities. The personality rights of

these celebrities represent significant commercial value which should be afforded strong protec-

tion under the law while balancing fair use rights of others. As legal systems across the world

grapple with defining and protecting celebrity rights, an opportunity has opened up for Jamaica

to lead the way in the development of the law applicable to celebrity personality rights. In the

present legal environment there is a need for certainty. We propose that celebrity rights legisla-

tion be adopted to provide that certainty. Legislation that strongly protects celebrity rights will

prevent the migration of our celebrity talent and the diversion of potential economic earnings

from Jamaica to other countries. We also propose that an Image Rights Registry be developed to

generate revenue for the government, to provide a mechanism to provide tax incentives for

celebrities who contribute to the Jamaican economy, and to stimulate the growth of secondary in-

30
dustries which would service registered celebrities such as wealth management, valuation ser-

vices, legal services and so forth.

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