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| 1 minute read

Is it too late now to say sorry? The perils of celebrity endorsements

Merchandising and brand collaborations are important and lucrative sources of income for musicians, but as this dispute involving Justin Bieber shows, they can also be controversial.

As explained in the article, since 2016 Bieber has had a partnership with H&M, but he has recently taken umbrage at their use of his image and lyrics, apparently without consent, and just before Christmas he posted on Instagram “The H&M merch they made of me is trash and I didn’t approve it. I wouldn’t buy it if I were you.”

The case is reminiscent of the UK claim involving Rihanna back in 2015, where the star took action against Topshop for using images of her on t-shirts without her consent. Whilst it doesn’t appear court action has been taken by Bieber, yet, it does serve as a useful reminder of the potential risks to bear in mind when dealing with celebrity endorsements.

Unlike other jurisdictions, there is no recognised "image right" under UK law. Rather claimants have to rely on a combination of copyright, trade mark infringement, passing off and privacy. In the Rihanna case, it was held that the use of her image amounted to passing off as:

  1. She had a significant goodwill and reputation in the UK
  2. The use of her image on the products constituted a misrepresentation that she endorsed them (although the court noted that if customers were informed the item was not endorsed/approved by Rihanna, there would have been no misrepresentation)
  3. She suffered damage as a result

The Bieber dispute seems to differ in that there is an existing arrangement in place with H&M. Indeed H&M have denied using Justin Bieber’s image without consent and have posted a statement on their website (here) claiming they had the correct contracts and approvals in place. It seems, therefore, that were the case to proceed to court it would be a question of contractual interpretation, rather than passing off or copyright infringement – and if Bieber’s objection to the line was purely on fashion/aesthetic grounds then H&M may yet be proved right.

However, H&M have apparently scrapped the line anyway, probably in a bid to preserve their relationship with the star; and also because, if Justin’s “Beliebers” no longer “belieb” in the products, they might have fairly limited appeal….


intellectual property, retail