What are image rights?

Image rights, broadly understood, refer to the right of an individual to control the commercial use of their name, likeness, photograph, signature, voice, and other personal attributes that are uniquely associated with their identity. It is the legal mechanism that allows a celebrity to prevent a brand from using their face to endorse a product they have never agreed to promote. It is what allows a private individual to object when their photograph is used in an advertisement without their knowledge or consent. And it is increasingly what allows athletes, influencers, and public figures to build and protect the commercial value of their personal brand.

The legal basis for image rights protection varies significantly from one jurisdiction to another. In the United States, the right of publicity is well established by statute in many states and has been extensively developed through case law. In Germany, the right to one’s own image is constitutionally grounded. In the United Kingdom, image rights are protected through a combination of passing off, trademark law, and the law of confidence. In Malaysia, there is no standalone image rights statute, but protection can be sought through the Personal Data Protection Act 2010, the tort of passing off, copyright law where a photograph is involved, and in appropriate cases, the law of defamation.

How image rights are commonly misused

The misuse of image rights takes many forms, and not all of them are immediately obvious to those on the receiving end.

The most straightforward form is the unauthorised commercial use of a person’s photograph or likeness in advertising, marketing materials, or product packaging. This occurs when a brand uses an image of a person, whether a celebrity, an influencer, or an ordinary member of the public, to promote its products or services without obtaining the necessary consent. It is surprisingly common, particularly in markets where awareness of image rights is limited and enforcement has historically been inconsistent.

A second form involves the creation of false endorsements. This occurs when a brand uses a person’s name, likeness, or personal brand in a way that suggests they endorse or are affiliated with a product or service when they are not. False endorsements are not only a misuse of image rights; they can also constitute misleading trade practices and cause significant reputational damage to the individual concerned.

A third and growing form of misuse involves digital manipulation. With the widespread availability of editing tools and AI-generated imagery, it is now possible to create highly realistic images of real people in situations they were never in, saying things they never said, or associated with products they have never used. Deepfake technology takes this a step further, generating video content that is increasingly difficult to distinguish from authentic footage. The legal and reputational risks posed by this category of misuse are significant and the law is still catching up.

A fourth form, particularly relevant in Southeast Asia, involves the unauthorised use of images on e-commerce platforms and social media. Photographs of individuals, whether sourced from their own social media profiles, from press coverage, or from other publicly accessible sources, are frequently used without permission by sellers, advertisers, and content creators operating on platforms such as Shopee, Lazada, TikTok, and Instagram.

What to do when your image rights are misused

The first step when you discover that your image rights have been misused is to document the infringement thoroughly. Take screenshots, record URLs, note the dates and platforms on which the infringing content appears, and preserve any evidence that may be relevant to establishing the scope and duration of the misuse. This documentation will be essential to any subsequent legal action or platform complaint.

The second step is to identify the party responsible for the misuse. In straightforward cases, this will be the brand, company, or individual who has used your image without permission. In cases involving social media or e-commerce platforms, it may be necessary to submit a formal complaint to the platform itself, invoking its terms of service and any applicable takedown mechanisms. Most major platforms have procedures for reporting the unauthorised use of a person’s likeness, and a well-prepared complaint can result in swift removal of the infringing content.

The third step is to consider whether legal action is appropriate. Where the misuse is commercial in nature and has caused or is likely to cause financial damage or reputational harm, a cease and desist letter from a qualified IP practitioner is often the most effective first step. Such a letter sets out the legal basis for your claim, demands that the infringing party cease the misuse immediately, and opens the door to a negotiated resolution that may include compensation, a public correction, or both.

Where the infringing party refuses to comply or where the scale of the misuse justifies more robust action, court proceedings may be necessary. In Malaysia, remedies available in appropriate cases include injunctions to prevent continued misuse, damages for loss suffered, and an account of profits where the infringing party has derived commercial benefit from the unauthorised use of your image.

Protecting your image rights proactively

The most effective approach to image rights is not reactive but proactive. For public figures, athletes, entertainers, and influencers, this means taking deliberate steps to establish and protect the commercial value of their personal brand before misuse occurs rather than after.

Registering your name and signature as trademarks in relevant jurisdictions is one of the most powerful tools available. A registered trademark gives its owner the right to prevent others from using the same or a confusingly similar mark in connection with the goods and services for which it is registered, and provides a clear legal basis for enforcement that does not depend on demonstrating passing off or other common law causes of action.

Maintaining careful control over the images and content you share publicly, including through your own social media channels, is also important. Images shared publicly are frequently repurposed without permission, and while this does not make such repurposing lawful, limiting the availability of high-quality images of yourself reduces the opportunity for misuse.

For businesses that regularly commission photography or video content featuring individuals, ensuring that model releases are obtained and properly drafted for every engagement is not optional. A release that does not cover the intended use, the relevant platforms, or the applicable territories is as good as no release at all.

Conclusion

Image rights misuse is not a niche problem affecting only celebrities and public figures. In the digital age, any individual whose likeness has commercial value, or whose image has been shared online, is potentially at risk. The tools to address misuse exist, and the legal framework, while imperfect and still evolving, provides meaningful remedies for those who act decisively.

Your image is part of your identity and, increasingly, part of your commercial value. Knowing how to protect it is no longer optional.

For further enquiries or advice, please contact us at kass@kass.asia for expert guidance.