UK Law and Practice Contributed by: Jamie Singer and Flora Peel, Onside Law
In the case of ECB & Sky v Tixdaq & Fanatix, Tixdaq – the developer of the Fanatix app – was unable to demonstrate fair dealing through their uploading of eight-second highlight clips from cricket matches (the copyright in which was owned by the ECB, and Sky). Databases The UK also recognises a legal database right under the Copyright and Rights in Databases Regulations 1997. This is an unregistered right that arises automatically upon the creation of the relevant database. A database right protects the contents of the specific database, where there has been sub - stantial investment in the acquisition, verification and/or presentation of the data comprised within it (which British Horseracing could not establish in the landmark case against William Hill). UK citizens/businesses are now ineligible to hold database rights in the European Economic Area (EEA) for databases created on or after 1 Janu - ary 2021. 5.3 Image Rights and Other IP Image Rights There is no standalone legal recognition for image rights (or personality rights) in the UK. Instead, individuals must rely on a myriad of IP and other rights to protect and exploit their image, including trade marks, passing off, pri - vacy rights and robust contractual protections. Passing Off High-profile sportspersons may be able to rely upon the tort of passing off to prevent the unau - thorised use of their image in a commercial context. To bring a claim, the individual must demonstrate:
• the goodwill attributed to their name/image; • that the third party has misrepresented to the public a link between the sportsperson and the third party’s goods and/or services, and this has, in turn, led to customer confusion; and • that damage has been, or is likely to be, incurred as a result of this misrepresentation. One of the leading cases in this context is Irvine v Talksport Ltd, where Eddie, Irvine, the For - mula One driver, successfully claimed passing off against Talksport for manipulating a photo of him holding a phone and replacing this with a Talksport handheld radio, thereby falsely repre - senting that he had endorsed the station. Unlawful Exploitation The issue of unlawful exploitation of image rights has arisen on numerous occasions, particularly in the context of football players. Notably, in 2020, Gareth Bale tweeted (following on an original tweet from fellow footballer Zlatan Ibrahimović) in relation to the alleged unlawful use of player images in the FIFA video game. However, EA – the developer of the FIFA video game – currently licenses player image rights (as well as other club rights, such as stadium names) collectively from the Premier League. Nothing has since been said on this, although it appears to still be a prominent discussion point in the sports industry. These types of claims are also being seen in other sports. For example, the cricket player’s union, FICA, has alleged that the International Cricket Council is using player’s image rights without appropriate approvals from the players by means of fantasy cricket leagues and docu - mentaries.
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