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Unauthorised use of an athlete's likeness, and what actually reaches it

A brand has used an athlete's name, face or likeness in something it is selling, and the instinct is that a right has been taken and a fee is owed. England and Wales gives nobody ownership of their own appearance, so that is not where the answer starts.

There is no standalone image right in England and Wales. A writer owns a copyright and a proprietor owns a registered trade mark, but nobody owns their face. Whatever protection an athlete has is assembled out of four separate things built for other purposes: the law of passing off, registered trade marks, the contracts the athlete has signed, and the rules governing the use of personal data. Each does something different, and none of them proceeds from the idea that a likeness belongs to the person wearing it.

That has a practical consequence which surprises most people who arrive with a complaint. How blatant the use is matters far less than what the athlete had in place before it happened. Two athletes can be treated identically by the same brand, and one has a claim while the other has a grievance, because one of them holds a registration and a trading record in the relevant field and the other does not.

It also explains what anyone experienced asks first, which is not about the brand at all: what the athlete owns, what the athlete has already licensed, and to whom. A number of these matters turn out to concern a use that something in the athlete's own arrangements already permitted, and that is discovered by reading the athlete's paperwork rather than the brand's campaign.

What passing off actually requires

Passing off is the closest thing England and Wales has to a personality right, and it was not designed to be one. It protects goodwill: the trade that attaches to a name or a get up because the public associates it with a particular source. To succeed, a complainant has to show goodwill of that kind, a misrepresentation made to the public, and damage flowing from it.

Applied to an athlete, the misrepresentation is ordinarily one of endorsement or association: that the athlete has approved, is connected with, or is being paid by the brand. That framing decides a great deal. A use that a substantial number of the relevant public would read as endorsement is capable of being actionable. A use they would read as reference, comment or reporting generally is not, however commercial the setting and however irritating the athlete finds it.

Goodwill therefore has to exist in a field where the association means something commercially, and an athlete with an established record of commercial associations is in a materially different position from one who has never done a deal. That is uncomfortable, because the athlete at the start of a career, whose likeness is most likely to be used opportunistically, is the one with the least to run on.

Brands and their agencies understand where that line sits, and campaigns are built along it. Congratulatory posts on the day of a result, product photography in which a recognisable athlete appears without being named, retailer copy describing truthfully what a competitor was seen using: these sit deliberately close to the boundary, and some of them sit on the lawful side of it. Telling which is which is a matter of assessment rather than instinct.

Why a registration changes the position more than anything else

A registered trade mark converts an argument into a property right. Passing off requires the athlete to prove goodwill, what the public would take from the use, and damage, each on evidence and each contestable. A registration exists on a public register, carries a date, and can be enforced without any of that being established first.

What can be registered is broader than most athletes assume: a name, a nickname the public actually uses, a signature, initials, a logo or device, and in some circumstances a mark associated with a celebration. What matters is that the thing functions as an indication of trade origin for particular goods or services rather than merely being famous, and fame is not the test. A name registered for goods the athlete does not trade in and never will is a weaker asset than it appears.

The effect shows most clearly in the places where nobody is going to court. Marketplace and platform brand protection programmes are built around registered rights. So are removals against unlicensed merchandise, and the conversations with counterparties in which the athlete's side has to state what it holds. A properly held portfolio does work in those settings every week that never becomes a dispute.

Two things go wrong with this in practice. Registration is cheapest and least contested before the athlete is well known, which is exactly when it is hardest to justify spending on, and it becomes urgent once somebody else has filed. And marks are frequently applied for in a personal name, or in a company later restructured, or by an agency acting for the athlete, so the entry on the register does not match the entity that trades, licenses or needs to enforce.

Contract, and the rights other people hold in your image

Most disputes about an athlete's image are not with strangers. They are with parties who had permission for something, and the argument is about scope: a former kit supplier, a club, an event organiser, a photographer, an agency, a brand whose arrangement has come to an end.

The controlling document is often one the athlete signed without reading closely, because at the time it appeared to be about something else entirely. Participation terms, club contracts, accreditation and event conditions routinely contain grants of image use, and a grant given for the purposes of a competition can be drafted widely enough to cover promotional use the athlete would never have agreed to as a standalone deal.

There is a further point that reliably surprises athletes. The copyright in a photograph belongs to the photographer, or to whoever took a written assignment from them, and not to the person in the picture. An athlete who posts a press image of themselves is using somebody else's work, and complaints of that kind are made. The position stops being absurd once the two rights are seen as separate: the photographer owns the photograph, and the athlete may or may not have anything that reaches its use.

Data protection, and the part it can and cannot do

An image from which a living individual can be identified is personal data, and its use by a business is processing. That engages the United Kingdom data protection framework, which gives an individual rights against the organisation processing the data and provides a route of complaint to the Information Commissioner's Office.

This reaches things passing off cannot. It does not require goodwill, so an athlete with no commercial record is not shut out of it, and it is concerned with what an organisation is doing with information about a person rather than with what the public would infer. It is also the framework that engages where an athlete's health, injury or performance information is being handled by a club, a competition or a data business.

Its limits matter as much. It is not an image right and it does not deliver the remedy an athlete usually wants, which is payment for a commercial use and control over where the image appears. There are exemptions of real breadth, including for journalism, and the analysis is genuinely technical.

The uses that engage nothing at all

A good deal of the use athletes object to is lawful, and being able to tell which is which prevents most of the money wasted in this area.

Reporting, comment, criticism and the ordinary business of covering sport are not the subject of a claim by the athlete. Nor is a photograph lawfully taken at a public event and used editorially. Nor is a truthful statement of fact about a result, a transfer or a performance in a publication that sells advertising alongside it, because commerce on the surrounding page does not convert reporting into endorsement.

Reference without any suggestion of association is generally outside it too. A retailer stating truthfully that it stocks the boots an athlete competes in is describing its own goods. A brand's use of a lookalike, where nothing presents the person as the athlete, may engage nothing at all, and the closer an impersonation comes to suggesting that it is the athlete the more likely it is to cross into misrepresentation. Material made by supporters that is not sold and implies no commercial connection sits in the same territory.

None of this depends on whether the athlete gave permission, which is the mental model almost everyone arrives with. Permission is relevant where there is a right to permit. Where no right is engaged, the absence of permission changes nothing.

When to spend nothing

Not every unauthorised use is worth answering, and treating each one as an infringement is how an athlete's legal budget disappears into matters that were never going to produce anything.

Where a use is small, unpaid and carries no suggestion of endorsement, the realistic outcome of a complaint is a deletion the athlete could have obtained by asking. Where the athlete holds no registration and has no trading record in the category, the passing off route is being run from the weakest position available, and establishing goodwill can cost more than the use complained of was ever worth.

There is also a consequence of complaining that athletes underrate. A demand letter about a minor use, in a market where everybody talks to everybody, can turn an obscure post into a subject of conversation and can make an athlete's representatives known as difficult to work with. Genuine misuse still has to be dealt with, and that is all the more reason to be clear about which category a use falls into before anything is sent.

The work worth paying for at that stage is narrow and diagnostic: which of the four routes, if any, is actually engaged, what the athlete already holds, and what has already been granted away. That assessment ordinarily costs less than the first letter, and it not infrequently establishes that no letter should be sent.

More on this: Image rights, part of sport.

This guide is general information about how these matters usually run. It is not advice, and nothing becomes advice until terms are agreed in writing. Brandleys Legal Ltd delivers reserved legal activities alongside regulated partners.