51茶馆

What is an 鈥渋mage right鈥�?

In UK law there is no such thing as an 鈥渋mage right鈥� or 鈥減ersonality right鈥� per se (referred to in the rest of this section as 鈥渋mage rights鈥�) because there is no legal process in the UK which protects the Intellectual Property Rights (IPR) that identify an image or personality.聽聽 See CG68450 for more detail.

In this context, reference is sometimes made to Article 8 of the European Convention on Human Rights which protects the right to 鈥渞espect for private and family life鈥�, which is imported into UK law by the Human Rights Act 1998. However, although one may have a legal right to privacy that is a purely personal right, it is not capable of transfer and, in our view, it is not property for Capital Gains Tax purposes.

For CGT 鈥渁ll forms of property鈥� are assets, see CG11700P, but property is something capable of being owned and with a value that can be realised CG12010. Whether an item of intangible property is an asset for the purposes of CGT, within the meaning in聽TCGA1992/s21, is normally determined by reference to the holder鈥檚 legal rights to protect his ownership of the item in the courts. As an 鈥渋mage right鈥� cannot be protected under legal process in the UK, it cannot be an asset within section 21.

Therefore the concept of an 鈥渋mage right鈥� is, to the extent that it can be protected under UK law, dependent on a bundle of different IPRs. These may include, for example, contractual rights CG13000, registered trade marks CG68220, passing-off of goodwill CG68410 and copyright CG68250.

It is important to recognise that the act of registering a trade mark does not itself create a valuable intangible asset, as it is the use made of the asset that contributes to any value. Similarly although a passing-off action may be possible to protect reputation, potential infringement liability is not the same as business goodwill established through successful trading.

It should be borne in mind that under section 37 TCGA 1992 a charge to income tax takes priority over a charge to CGT. Consequently a payment derived from, say, copyright may, depending on the circumstances, be chargeable to income tax and not to CGT.

Image rights in other jurisdictions

In some jurisdictions (e.g. more than 30 States under US law) there is a 鈥渞ight of publicity鈥� or 鈥減ersonality right鈥�, which treats aspects of personality as a kind of property that may be misappropriated by commercial exploitation without consent CG68430.

UK law does not recognise such a right. The only way in which a pure image right can be protected in the UK is under the Law of Passing-Off CG68410. However, the use of 鈥渋mage rights鈥� contracts continues to be popular with sportsmen, entertainers and others CG68420.