What are image rights?

The social media revolution has empowered individuals to take control of managing their own voice, image and the works they create. For ‘talent’, in this context being used to refer to athletes, players and other talented individuals, it is a very important development.

From being mere cogs in the media wheel they can now step up, take a bigger role and potentially reap real returns from their efforts, prowess and results using platforms that drive connection, ubiquitous and free.

In this context, an image right generally covers the right of an individual to control the commercial use of their name, their image or any other aspect of their identity. It is also called a right of publicity or a personality right.

Unlike copyright or trademarks that provide specific rights under legislation, image rights fall under 2 categories:

  • the right to keep your own image and likeness from being commercially exploited without permission or contractual compensation; and
  • the right to be left alone and not have your personality represented publicly without permission.

These don’t interfere with legitimate commentary and review about individuals and the basis is that each individual should have a say in how his or her persona is commercialised by other people.

For example, an athlete cannot object to being the subject of a photo taken for a news story on a record breaking performance, but could protest their image being used, without their permission in an ad for soft drink.

What is the future of image rights and talent in Australia?

Social media moves at a very fast pace and many are still in the early stages of understanding both the opportunities it can bring and the risks it may pose.

At Sainty Law we have identified a number of trends we see coming to the fore:

  • Digital media rights, including image rights, will become a very important growth area for talent. It will create opportunities for corporates to create valuable strategic relationships with individual players both for local and national support bases.

We see the areas for social media expansion being twofold. First, corporates will seek to align themselves with specific individuals through social media platforms. Second, individuals will start to understand the importance of a strong social media presence to personalise their relationship with their fans. This enables them to express themselves, to improve the size and commercialisation of their existing following and to position themselves for ongoing career benefits after their sporting career has ended.

  • We will see the expansion of data analytics into this field. Just as teams are benchmarked now in traditional media, opportunities will arise to measure individual and team performance in social media.

For example in the USA, the NBA has a social media performance analysis. They measure a variety of metrics to rank the teams in the league, including presence or visibility online and audience relationships through social media. As a result, good performance scores may encourage additional endorsements and sponsorship either for individuals or their teams.

Social media has opened up the potential for both individuals and corporates to diversity their income streams. As new platforms are developed, broader opportunities and channels have been created for brand promotion, benefitting both the individual and corporates who strategically target and engage with the best talent.