The reported lawsuit brought by Dua Lipa against Samsung Electronics in California has renewed attention on celebrity image rights and false endorsement claims.
According to US reports, Dua Lipa alleges Samsung used her image on television packaging and promotional material without permission, creating the impression she endorsed the products. The US claims reportedly include copyright infringement, trade mark infringement, and breach of California publicity rights law.
Under US law, particularly in California, celebrities benefit from a recognised “right of publicity”, allowing them to control and monetise commercial use of their image and likeness. England and Wales take a very different approach. English law does not recognise a standalone image right. Instead, celebrities must rely on overlapping legal doctrines including passing off, misuse of private information, breach of confidence, copyright, data protection law and advertising regulation.
The Dua Lipa dispute therefore raises an important question for English practitioners: what remedies would exist if similar facts arose under English law?
No Standalone Image Right
English courts have consistently refused to recognise celebrity image rights as a freestanding intellectual property right, despite acknowledging the substantial commercial value of celebrity identity.
This position was reinforced in Douglas v Hello! and OBG Ltd v Allan; Douglas v Hello!, where the courts protected the confidential circumstances and information embodied in the Douglases’ photographs through breach of confidence principles rather than recognising a proprietary right in the Douglases’ image or celebrity identity, making clear that English law was not creating a proprietary “image right”.
As a result, any English claim would depend on fitting the facts within existing legal doctrines.
The Different Legal Routes
Breach of Confidence
The courts accepted that the owners of confidential information who have taken steps to control the use of such information, and those with exclusive rights to publish the information, can expect protection from the law of confidence if spoiling tactics are employed by third parties.
However, in this case, if Samsung merely used the backstage festival photograph currently reported as already publicly available and commercially circulated, and not private information in the conventional sense supplied under confidential restrictions, a breach of confidence claim would likely struggle.
Misuse of Private Information
Misuse of private information protects privacy rights under Article 8 ECHR. The central question would be whether the claimant had a reasonable expectation of privacy in the relevant information.
Cases such as Campbell v MGN, Murray v Big Pictures and Mosley v News Group Newspapers confirm that photographs can engage privacy rights. However, those cases primarily concern protection of private life rather than commercial endorsement, and the courts distinguish between genuinely private material and material which merely has commercial value because of celebrity status.
As well, if the photograph used by Samsung was already in the commercial or public domain, establishing a reasonable expectation of privacy would likely be difficult.
Trade Mark Rights
A trade mark claim would depend on the existence and scope of a relevant registered mark and the use complained of the trade mark. Mere unauthorised use of a celebrity photograph will not automatically amount to trade mark infringement.
In practice, celebrities often register their names as trade marks, as done by figures such as David Beckham and Tiger Woods. Registering likenesses is considerably harder, and so would be proving infringement. In any case, the enforceability of such marks has yet to be fully tested in the courts.
Performers’ Rights
Performers’ rights protect recordings and performances, including the right to prevent the unauthorised recording and exploitation of performances, and the moral right to be identified as the performer of a qualifying performance and to object to derogatory treatment of a qualifying performance.
However, the statutory regime governing performers’ rights is not concerned with commercial misrepresentation of endorsement and so would be unlikely to assist in this case unless the disputed material constituted, or was derived from, a protected performance recording.
Data Protection Law
Photographs of identifiable individuals can constitute personal data under the UK GDPR and Data Protection Act 2018, and so the unauthorised commercial use of celebrity images may engage data protection obligations, particularly where processing lacks an appropriate lawful basis.
The fact that the photograph is personal data does not make its use unlawful. The question would be whether Samsung had a lawful basis for processing, had complied with transparency obligations, and could justify the processing against the individual’s rights and reasonable expectations.
While data protection law would be unlikely to constitute the primary cause of action, it could provide a supplementary basis for challenge in an English law context. Nevertheless, English courts would likely remain cautious about permitting data protection law to evolve into a de facto image right, particularly where the underlying complaint is, in substance, one of false commercial endorsement rather than informational privacy alone.
The Stronger Legal Routes
Passing Off
Passing off would likely represent the strongest English claim. While English courts remain cautious about recognising broad proprietary rights in celebrity identity, they have shown greater willingness to intervene where commercial use creates consumer deception.
Although they do not create a general right to control all merchandising uses of a celebrity image, Irvine v Talksport and Fenty v Arcadia confirm that passing off may restrain unauthorised use of a celebrity’s image where the use amounts to a misrepresentation of endorsement, authorisation or commercial connection.
Dua Lipa would need to establish goodwill in England and Wales, which may be evidenced by her reputation, endorsement activity and commercial licensing value, together with a false representation that she endorsed or was connected with Samsung products, and resulting damage such as lost endorsement or licensing fees.
Relevant factors would include how prominently the image appeared, whether consumers would infer endorsement, any disclaimers, or Dua Lipa’s endorsement history.
Reports suggesting consumers bought televisions believing Dua Lipa was associated with Samsung would materially strengthen a passing off claim, although proof of actual mistaken purchases would not necessarily be required.
Copyright
Copyright could also be a strong cause of action in an English analogue of the dispute. Under the Copyright, Designs and Patents Act 1988, copyright subsists automatically in original photographic works, with ownership ordinarily vesting in the photographer or any party to whom rights have been assigned.
It would not ordinarily be available to the celebrity merely because she appears in the photograph. It would be available if she or an associated entity owned or exclusively licensed the relevant rights, which appears to be the case here, as reported.
Accordingly, the legal analysis would turn upon the provenance of the image and the scope of any licence authorising its use. If Samsung used the photograph without permission, a valid licence, or beyond the scope of a restricted licence, copyright infringement could arise.
Advertising Regulation
The CAP and BCAP Codes aim to prevent misleading advertising and unfair commercial exploitation of individuals’ images, and so can be invoked by celebrities as well as private citizens in appropriate cases.
Advertising regulation may provide a practical route to withdrawal or amendment of misleading advertising, but it is not a damages remedy and does not create a proprietary image right. The Advertising Standards Authority sanctions are regulatory and reputational, with escalation routes depending on whether the advertisement is broadcast or non-broadcast.
Persistent or serious non-compliance may be escalated through the applicable regulatory backstops, including referral to Trading Standards or Ofcom.
Conclusion
The Dua Lipa-Samsung dispute highlights the major difference between US publicity rights and English image rights law. California recognises celebrity identity as a commercially protectable asset. England and Wales do not.
Instead, celebrities seeking relief in England and Wales must rely on protections offered to private life, confidential information, goodwill, original works, misleading marketing or personal data use, to challenge unauthorised commercial use of their image.
Whether that position remains sustainable in an era dominated by influencer marketing, digital advertising, AI-generated likenesses and global brand partnerships remains open to debate.
What is clear, however, is that such disputes will continue to test the limits of the English image rights framework and may further intensify calls for a coherent statutory publicity right in England and Wales.
How To Get In Contact
To find out more or if you require assistance with these matters, speak with our Intellectual Property Team on +44 (0)204 600 9907 or email info@culbertellis.com.
Accurate at the time of writing. This information is provided for general information purposes only and should not be relied upon as legal advice.
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