[1][ISMAP]
Owning Diana: From People's Princess to Private Property
Alan Story, LL.B., LL.M.*
Lecturer (On Leave)
The Law School
The University of Hull
<[2]wheatand@ici.net>
* Thanks for tips, comments, and assistance: Greg Alexander, Hazel Carty,
Rakesh Doegar, Roger Glover, Wendy Gordon, Andrew Hicks, Phil Jackson,
Roger Kerridge, Mary Jane Mossman, John Motron, Helen Norman, David Vaver,
David Wall, and the anonymous referee of the Web Journal of Current Legal
Issues.
Copyright © 1998 Alan Story.
First published in the Web Journal of Current Legal Issues in association
with Blackstone Press Ltd.
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Summary
This article assesses the claims of the Diana, Princess of Wales Memorial
Fund, to intellectual property rights, specifically copyright, trade mark
and rights of publicity, in the name and image of the deceased Princess.
Tribunals and the courts should not recognise such claims, the article
argues, as they conflict with basic intellectual property doctrine and
coherent policy objectives. Nor does basic succession law support many of
the Fund's ostensible claims.
Using a social relations approach to property, the article suggests that
the "the public", rather than the Fund or Diana's Estate, have a superior
claim to intellectual property rights in Diana because of how her value
was created. Diana's meaning and value should remain a common asset; their
commodification would represent another step in the propertisation of the
public domain. One consequence, among others, of such commodification
would be to put part of Britain's culture behind a user-pay turnstile and
to limit access to a cultural icon.
The analysis is introduced by an assessment of what is behind the
merchandising strategy of the "Diana" brand and by a brief look at the
history of treating famous persons as intellectual property.
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Contents
[3]1. Introduction
[4]2. Diana as an Object of Intellectual Property
[5](a) Famous Persona as Intellectual Property
[6](b) Merchandising of the "Diana" Brand
[7]3. Diana and Intellectual Property Doctrine
[8](a) Copyright
[9](b) Trade Mark
[10](c) Right of Publicity
[11]4. Owning Diana's Name and Likeness:
[12](a) The Fund's claim: What does it really own?
[13](b) The Public's Claim: How were Diana's Name and Image
Created?
[14]5. Access to Diana's Meaning in Public Cultural Spaces
[15]Bibliography
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1. Introduction
Hours after Princess Diana died August 31, 1997 in a Paris car crash, Tony
Blair told the British people that they had lost "the People's Princess."
As the scale of international mourning mounted and as accountants tallied
up the prospective commercial value of her name and image, Blair's
government, the Royal family, Diana's friends and advisors, Earl Spencer,
and their lawyers faced a clear choice about her future "life" on earth:
Should her value - as a person and princess, as a name, as an image - be
propertised and commodified as private intellectual property? Or,
conversely, should her value and access to her multiple meanings remain in
the public domain, should no user-pay turnstiles be erected, should no one
own that value; in other words, should the people own, in an intellectual
property sense, the "People's Princess"? They choose the first option;
populism, either Blairite or royalist, has its limits. Their logic recalls
what an American legal academic suggested about the intellectual property
rights of another dead celebrity, Bela Lugosi, Hollywood's Dracula. To
declare "no property interest" in the "elusive property" of such names and
images would be to reproduce "the most primitive state of property
law"(Goettsch 1981, pp 993-94). In coming months and years, intellectual
property tribunals and courts in both Britain and the United States will
also be making choices about the copyright, trade mark, and rights of
publicity implications of Diana's persona and who, if anyone, owns her
intellectual property rights. This article previews the intellectual
property claims and policy questions they will - or should - adjudicate.
First a bit of factual background. One party to most of these proceedings
will be the Diana, Princess of Wales Memorial Fund (hereafter "the Fund"),
established quickly after Diana died as a charitable conduit to disperse
the millions of pounds that flowed in from the public, commemorative
recordings, and the like. The Fund will be a party because, soon after
Diana's death, her solicitors carried out a court approved post-death
variation of her 1993 will and added clauses devising Diana's intellectual
property rights to her sons, William and Harry. In turn, they and Diana's
executors transferred some of their rights to the Fund who have taken up
the role - part custodial, part commercial, and part chivalrous - of, to
use its words, "protector of the intellectual property rights granted
exclusively to it by the Princess's Estate." Acting for the Estate and the
Fund, London solicitors Mischon de Reya made several applications in the
autumn of 1997 for a trade mark in Diana's name and her image, submitting
52 photographs (26 colour, 26 black & white) of Diana from numerous angles
and in various guises. They also applied for a trade mark in her signature
as part of a stylised Diana logo. Trade mark applications have reportedly
been filed in a total of 172 countries. The solicitors also stated in
press reports that they were claiming copyright in the name "Diana,
Princess of Wales" (Castle 1998). As a flood of tacky Diana souvenirs and
trinkets entered the marketplace, the Fund responded with its first two
endorsed "Diana" products: tubs of Flora margarine bearing Diana's logo
and Littlewoods' lottery Diana scratchcards. The Fund is considering more
than 1,000 other licensing deals and, as of August 1998, had licensed six
official Diana products, ranging from Royal Mail stamps to scented candles
to a Princess Diana Beanie Baby. Then in May 1998, the Fund and the Estate
commenced a trade mark / right of publicity infringement action in the
U.S. District Court in Los Angeles against the Pennsylvania-based Franklin
Mint. The suit claims that Franklin, a well-known manufacturer of memorial
plates, porcelain dolls, and related bric-a-brac, was making unauthorised
use of Diana's image on several of its products. In August, the Fund was
itself sued in the U.S. District Court in Delaware by the Illinois-based
Bradford Exchange Ltd., another maker of commemorative plates, dolls, and
music boxes. This second suit claims the Fund does not control any
publicity rights or intellectual property rights to Diana and that
Bradford is licensed by contract with the Fund to reproduce Diana's name,
image, and likeness. The Trade Marks Registry of the Patent Office, which
has been examining the various Diana trade mark applications for almost a
year, will be rendering its decision shortly on the trade mark claims.
This may result in further hearings and court action. Other Diana-related
intellectual property lawsuits are likely in coming months.
After briefly sketching the history of famous names as intellectual
property and contextualising the branding of Diana, I first assess whether
the Fund's copyright, trade mark, and rights of publicity claims to Diana
should be recognised. I have concluded the first two claims are highly
problematic, extremely difficult to enforce, and, if recognised by British
courts, could lead to significant changes in British intellectual property
doctrine. I argue the Fund's claims are actually a right of publicity
claim, a cause of action not recognised in the UK, masquerading, in part,
as copyright and trade mark claims. A right of publicity, sometimes also
called the tort of "appropriation of personality" (Frazer 1983) is defined
as a property right, usually exercised by a celebrity, to control the
unauthorised commercial use of his/her name, likeness, or other
recognisable aspect of personality. In the U.S., and particularly in
states such as California which has a specific "Celebrities Rights"
statute tailored to Hollywood's commodification needs, the Fund may be
more successful in asserting property in Diana's name which English law
denies. Whether, on policy grounds, it should succeed there either is
questioned. The next section of the article focuses on the questions: who
can legitimately claim ownership of intellectual property rights in Diana
and what intellectual property rights did Diana actually own? Answering
these questions directly opens up the wider issues of both treating Diana
and her value as a private cultural commodity and the implications of this
approach for access to her meaning.
Several commentators have recently expressed serious concerns about the
growing trend toward the "propertization" of the public domain by
intellectual property law (Drahos 1996; Lemley 1997). The theory of
"propertization", treating intellectual property as if it was real
property,[16]^(1) "suggests that strong pressure exists to make sure that
all valuable information is owned by someone, simply because it is
valuable"(Lemley 1997, p 906). Commodifying as intellectual property the
value of Diana's name, a national symbol, would provide further momentum
to this worrisome international approach. As one U.S. judge, concerned
about the diminishing public domain, warned us:
"Overprotecting intellectual property is an harmful as underprotecting
it. Creativity is impossible without a rich public domain" (White v
Samsung Electronics America Inc. 989 F2d 1512 (9^th Cir. 1993), Kozinski
J. dissenting).
If anyone was part of the public domain it was Diana.
This article is geared to the specialist reader, the more generalised law
reader, and those net citizens who have followed the Diana story in the
press and through literally thousands of websites and net discussion
groups. Celebrity deaths often attract huge popular interest; Diana's
topped all others in media coverage. Yet intellectual property questions,
one strand of that coverage, are typically not the subject of dinner-table
conversation and, in Diana's case, the media have both badly educated
their readers/viewers about its basic parameters and failed to investigate
the sometimes absurd intellectual property claims of the various players
in the Diana drama.
[17]Top | [18]Contents | [19]Bibliography
2. Diana as an Object of Intellectual Property
(a) Famous Persona as Intellectual Property
Until relatively recently, famous persons on both sides of the Atlantic
seldom attempted to obtain intellectual property rights in their name or
image. Fame itself (and the psychic benefits stemming from widespread
public recognition) was considered sufficient reward. A "widely shared
conception" viewed "famous persons as a kind of communal property freely
available for commercial as well as cultural exploitation" (Madow 1993, p
149)[20]^(2). Based on the same spirit of non-commodification, plaintiffs,
whether famous or not, who complained that their name had been used
without authorisation, for example in advertisements, usually were
unsuccessful in court; neither names nor personal images were considered
property (Dockrell v Douglas (1899) 80 LTR 556). Until at least 1900,
"commodification of name and likeness had not advanced sufficiently...for
judges to conceive of persona as a `thing' "(Armstrong 1991, p 455). Even
as recently as 1935, when mass media advertising was becoming well
established and personal product endorsement, especially by celebrities,
had become one of the favoured presentational devices of that trade, an
American court voiced ethical objections to treating people as property,
declaring "[f]ame is not merchandise" (Hanna Mfg. Co. v Hillerich &
Brodsky Co., 78 F 2d 763, 766 (5^th Cir.1935). In the UK, Lord Greer
likewise concluded during this same period that those entering occupations
which invite publicity should "without complaint" consider their names and
reputations "as matters of public interest, and almost as public property"
(Tolley v J.S. Fry & Sons, Ltd. [1930] 1 KB 467, 477 ).
Although by this time British and American jurisprudence had begun to
diverge as to whether names and personal images themselves deserved legal
protection,[21]^(3) U.S. courts initially concluded that the unauthorised
commercial use of another person's name involved unfair competition,
breach of contract, or was a tort. Tort injury offends a personal right,
not a property right, and, as such, it is not a right that can be
transferred to descendants. By the 1950s, however, British and American
jurisprudence began flowing in completely separate channels when a
landmark U.S. case, Haelan Laboratories, Inc. v Topps Chewing Gum Inc. 202
F 2d 866 (2d Cir. 1953), created a new right, a right of
publicity.[22]^(4) Subsequent American cases decided that this right of
publicity was a full-fledged property right and, in many states,
descendable. Today, such cases have become a rapidly expanding litigation
area in U.S. entertainment, celebrity, and sports law (McCarthy 1988;
Goodenough 1992; Jollymore 1994). But in this country, despite academic
criticism and annoyance at the supposed narrowness of British
jurisprudence and its failure to accept market realities, such as
personality merchandising (see Coleman 1983, Frazer 1983), names and
personal images still are not, by themselves, recognised as intellectual
property. (Before British courts, the main causes of action against the
unauthorised commercial use of a name remain trade mark infringement and
passing off).[23]^(5) What is particularly noteworthy about the Diana case
is that it has become one of the first cases in either country where the
descendants of a famous public figure, as opposed to the usual "private"
plaintiffs - movie stars, singers, game show hosts, human cannonballs, and
assorted celebrities - has sought to acquire intellectual property
protection in a name and market that fame. (For one of the rare U.S. cases
involving a non-entertainer, see Martin Luther King Jr. Center for Social
Change, Inc. v American Heritage Products Inc. 508 F Supp 854 (1981).)
[24]Top | [25]Contents | [26]Bibliography
(b) Merchandising of the "Diana" Brand
But drawing this dichotomy between the well known public figure and the
entertainer or celebrity-" a person who is known for his well-knowness,"
according to Boorstin's often-cited definition (cited by Nairn 1988, p 35)
- is perhaps not so clear cut. The Fund's proposed branding of Diana fuses
elements of three marketing strategies prominent in the public and private
spheres: (1) royal hallmarking; (2) character /personality merchandising;
(3) celebrity endorsement. Yet, the "Diana" campaign also somewhat
diverges from these three strategies and implicates some differing legal
and commercial questions.
Royal hallmarking, the use of the royal arms and an official designation
that certain products are favoured by the Royal household, is a
long-standing marketing device. Such a designation gives household
products, such as foodstuffs like PEEK FREAN biscuits, a certain cachet;
you are eating what the Queen eats. Companies securing this privilege
guard it jealously, in the past even forming protection organisations such
as the Royal Warrant Holders' Association. To claim falsely that a product
has royal endorsement remains an enumerated offence (Trade Marks Act
(hereafter "TMA")1994, s 99). Hallmarking is form of monarchical
intellectual property protection. In part, the Diana campaign is based on
the same associations with royalty. As one marketing expert said about the
motives of American junk mass mailing companies who purchased millions of
Diana commemorative stamps for use as a promotional gimmick, "they are
implying they have royal patronage"(Devoy and Reid 1998). Yet, traditional
royal hallmarking aims at venerating an institution, all Kings and Queens,
not an individual "Queen of Hearts." And, unlike the veneer of up-market
or at least mid-market refinement usually associated with royal hallmarked
goods, the initial endorsement by the "Queen of Hearts" of tubs of
margarine and betting scratchcards was decidedly downmarket. Such
unrefined associations inflamed staunch monarchists and belatedly led to
the Fund's attempted re-positioning of the Diana brand in the marketplace.
Character/personality merchandising and celebrity endorsement, the other
two marketing elements, involve commodity tie-ups (Gaines 1991, p xiii),
the creation of a relationship between merchandised goods and a notable
character and, in this case, between Diana as an international cultural
icon and scented candles or beanie babies. Considering the emotions
generated by Diana's death, the Fund's decision to have her personality
commemorated through such tie-ups is not surprising in this culture. "In
the peculiar but familiar customs of consumer capitalism, our emotions are
directed towards objects, rather than action " (Williamson 1985, p 12). If
you want to cherish or emulate Diana, buy a Diana beanie baby rather than
join a group protesting landmines or calling for more AIDS research. As a
merchandising effort, the Diana campaign is replicating what worked for
the Walt Disney Studios in the 1930's with Mickey Mouse and for the movie
STAR WARS in the late 1970s, when the merchandising of goods depicting its
characters netted well over $100 million in a few years. Recent full-page
ads in the U.S. newspapers for the digitally restored version of the film,
THE WIZARD OF OZ, urge us to "follow the yellow brick road" to stores
selling "Special Edition Wizard of Oz merchandise." Certainly, recent
changes in the attitude of the British judiciary towards character
merchandising will assist the Fund's efforts to construct its own yellow
brick road. (See e.g. the `Teenage Mutant Ninja Turtle' case, Mirage
Studios v Counter-Feat Clothing [1991] FSR 145; see also Carty 1993.) What
is distinctive about the projected character merchandising of Diana is
that, to date, most British character merchandising has involved fictional
characters directed at the under-ten set, one text citing "Sonic the
Hedgehog pyjamas, Care Bear toothbrushes, Thomas the Tank Engine pyjamas,
and Postman Pat soaps" as typical examples (Phillips and Firth 1995, p
309). Whether the policy justification for legally protecting Thomas the
Tank Engine is the same as that for protecting Diana as a beanie baby
character is another matter. One commentator has called such abuses of
celebrities - and of the public - "disneyfication" (Phillips 1998).
Merchandising characters and celebrities not only move products off
shelves, but simultaneously make the character/celebrity more famous as
well. Consider the example of U.S. basketball star Michael Jordan,
labelled "the greatest corporate pitchman of all time", and the elementary
"mutualism" that has developed between Jordan and the products he endorses
such as Coca-Cola and Nike.[27]^(6) When he endorses Coke,"it helps sell
the product and it makes Michael Jordan more famous", argues economist
Tyler Cowen (Gates 1998, p 48). (Thomas the Tank Engine has profited from
the same phenomenon.) This mutualism operates on another level as well. If
the Diana marketing campaign is as successful as its promoters hope, not
only will Diana's fame be perpetuated - we will see her likeness on store
shelves everywhere - but her meaning will travel from her to the companies
(and their products) paying hefty licensing fees for the use of her name
and image. Think Diana, think beanie bears; think beanie bears, think
Diana. (British newspapers have employed the same mutualism: think Diana,
think Daily Mail, and vice versa.) Diana's other meanings, for example as
a campaigner against landmines, will, in turn, become diluted through
these associations. Perhaps sports stars and entertainers regard such
dilution of their own non-commodified talents as inevitable and "just part
of the business"; whether Diana's legions will concur in this approach -
or for how long - is not as certain.
Already, the Fund is facing a contradiction in its character merchandising
campaign. On the one hand, the Fund talks of only employing Diana's name
"at a rarefied level" (Christensen 1998). On the other hand, it would be
unusual indeed if the licensing agreements between the Fund and Diana
merchandisers put a ceiling on how many beanie bears or scented candles
could be marketed; that's not how merchandising works. Further,
commemorative souvenirs and collectibles, including those celebrating
monarchy, are, by their very nature, either relatively low-cost and within
the pocketbooks of the masses or sold at rip-off prices. If "rarefied"
means over-priced, we can, in time, predict consumer backlash, something
that has not plagued those flogging Elvis Presley ashtrays and other
knickknacks commemorating "The King of Rock and Roll".
Yet Diana is not the typical celebrity endorser, a Michael Jordan or a Tim
Henman putting their signature and stamp of approval on a basketball or a
tennis racket. Her celebrity endorsement, her stylised logo and signature
affixed to a tub of margarine or beanie bear, is, with respect, the
endorsement of a deceased celebrity. The notion that a celebrity-endorsed
product is actually endorsed by that celebrity simply cannot be sustained.
Perhaps, however, this is unimportant. While members of the Royal family
have "had to become celebrities in recent years", the "British Royals are
never just celebrities...they remain something more as well" (Nairn 1988,
p 35; emphasis in original). They possess a certain "mystique", a
"something extra", which means that, at least among their own subjects,
"monarchy dwells in a category all of its own" and "in some enigmatic way,
appetite feeds off itself and is never sated" (Id. pp 34-35). And so if
Jordan or Henman can expect to star in fewer commercials when they retire
from their respective courts, marketing experts predict Diana's mystique
will have a long shelf life. If a trade mark is acquired, its use
maintained, and the renewal fees paid, that shelf life will be exclusive
and legally protected ad infinitum (TMA 1994, ss 42-43) which shows how
high the stakes are. Even rights of publicity are usually presumed to have
some termination date.
To prevent others perhaps ever trading in Diana's royal mystique, to
protect the exclusivity of its personality, and to carry forward this
global merchandising campaign, the Fund says the state must establish
intellectual property rights in her name and image. Should it concur?
[28]Top | [29]Contents | [30]Bibliography
3. Diana and Intellectual Property Doctrine
(a) Copyright
If it arises, the copyright claim in Diana's name should be the most
straightforward and transparent issue for the courts to
adjudicate.[31]^(7) For the Fund's intellectual solicitors to even make
such a claim reveals the well-known puffery and bluffery of much
intellectual property litigation. If they are successful, the already
mouldy instrumental justifications of copyright as a reward for labour, as
an incentive for investment, and as vehicle for social/cultural enrichment
will further decompose. With copyright's hurdles already so low that the
sloping VISA mark gets copyright protection in Canada (Visa International
Service Assn. v Auto Visa Inc. (1991) 41 CPR (3d) 77 (Que. S.C.)),
awarding copyright in someone's name recalls that old limbo rock refrain,
"how low can you go"?
To qualify for copyright protection, the author of a creative work, such
as a book, photograph, or pop tune, must demonstrate, as an initial step,
first, that he or she is the author who created it, second, a work has
been produced, and third, this work is original. (Copyright, Designs, and
Patent Act (hereafter "CDPA") 1988 ss 1,3, 9). Original and work, as
copyright terms of art, mean the work originated from the author
(University of London Press Ltd. v University Tutorial Press Ltd. [1916] 2
Ch 601 at 608) and involved some intellectual effort (Ladbroke (Football)
Ltd. v William Hill (Football) Ltd. [1964] 1 WLR 273). While this
paint-by-number overview greatly oversimplifies the contested concept of
originality and authorship (see Vaver 1997, pp 41-45; Jaszi 1991) and
while the Fund's solicitors (or, fancifully, Diana's parents) might play
with various hypotheticals, the name "Diana" or "Diana, Princess of Wales"
would likely fail to qualify as an original literary work of
authorship.[32]^(8)
Admittedly, there is somewhat of a problem with the case law usually cited
on this point. In Exxon Corp. v Exxon Insurance Consultants International
[1981] 3 All ER 241, the Court of Appeal concluded that the invented (and
trade marked) word "Exxon" was not an "original literary work" because it
did not convey information or provide instruction or give pleasure (Exxon
at 248 (per Stephenson LJ)). This approach has legitimately been
criticised because most words convey some information and, in Diana's
case, mention of her name does give pleasure, among other emotions and
meanings, to many people. Yet, to argue that selecting an infant's name
involves the requisite "work or skill or expense" (Ladbroke at 291 (per
Lord Pearce)) to qualify for copyright offends copyright's de minimis work
rule; even if it did not, Diana's parents, not Diana, would potentially
hold copyright for their name selection skills. Certainly fictional names
are considered neither property (Conan Doyle v London Mystery Magazine
Ltd. [1949] 66 RPC 312) nor, by themselves, protected by copyright. And
neither are the names of real people; "there is nothing akin to copyright
in a name. This has been part of our common law for a long time", stated
Laddie J. in Elvis Presley Trade Marks [1997] RPC 543, 547. Further, while
Arthur Conan Doyle may have authored Sherlock Holmes, Diana was, like any
other real person, not the author of her own name. Questioning the work or
authorship requirements themselves would be to question basic categories
of copyright doctrine, categories necessary for the very perpetuation of
that doctrine (Gaines 1991, p 15). The name Diana should not become Diana
©.
The image of the most photographed woman in the world is as valuable and
as ubiquitous as her name, perhaps more so. Here significantly, copyright
in photographs again decidedly works against the Fund's claim to own
Diana. Except for photographs taken under a contract assigning rights to
her, copyright in the literally millions of photographs of Diana is held
by the photographers who took them or, in some cases, by the
photographers' employers (CDPA 1988, ss 1(1)(a), 4(1), 9(1), 11(1)(2)).
The statutory language of s 9(1) particularly resonates in the case of
Diana's image; the photographic "author, in relation to a work, means the
person who creates it." Although this approach contains its own
contradictions (see Edelman 1979), these photographers own her images and
possess full rights to use/assign/licence her photograph in newspapers, on
T-shirts or for tacky souvenirs. This multiple ownership of her various
images creates obvious conflicts if the Fund acquires trade mark in her
photographic image as well. But one jet-setting American photojournalist,
who has taken Diana's picture numerous times, told me confidently in an
interview, "I'd love to face the Fund in court; I own her image".
Most of the above doctrine is covered in the introductory lectures of any
university course on copyright. Yet, the Fund, believing it is on to a
"very good thing" with its claim to own and manage the Diana franchise, is
attempting to expand its Diana claim into the "Very Good Thing" of
copyright (Vaver 1995, p 71). For copyright protection, "no money needs to
be spent...protection is world-wide....One can start, stop, and finish
exploiting the product as one wishes, charge whatever prices will bear for
the rights or products produced under it, refuse licences whenever one
wants...with relative immunity from competition or antitrust action as
long as one behaves with a modicum of diplomacy" (Id. p 71). In Diana's
case, this very good thing would presumably subsist, to conclude this
fantasy, until the year 2067, 70 years after her death (CDPA 1988, s 12).
[33]Top | [34]Contents | [35]Bibliography
(b) Trade Mark
The Fund's trade mark claim involves more doctrinally complex issues than
does its copyright claim and next I assess both registrability of "Diana,
Princess of Wales" as a name and as a photographic image and some of the
issues that might arise in upcoming trade mark infringement actions.
(i) Registrability
As defined by the TMA 1994 s 1(1), a "trade mark" means "any sign capable
of being represented graphically which is capable of distinguishing goods
or services from those of other undertakings." Many signs qualify, ranging
from KODAK to the roar of the MGM lion or the colour combination on a drug
capsule, from the YUM advertising Bailey's Irish Cream to the shape of a
Coca-Cola bottle. On the other hand, there are various absolute grounds
for the refusal of registration, such as lack of distinctiveness or a mark
which designates the quality of a good, and various relative grounds, such
as being identical with an earlier trade mark on an identical good (TMA s
3 (1)(b), 5(1)). To take one often-cited example, PERFECTION could not be
registered for soap because it designated the purported quality of that
soap and was not distinctive (Crossfield's Application (1909) 26 RPC 837;
for one summary of current registrability requirements, see Cornish 1996,
pp 581-605).
Perhaps the greatest hurdle to trade mark registration that "Diana,
Princess of Wales" will face is that it may be considered devoid of
distinctiveness, meaning that a proposed trade mark would fail to
demonstrate that no other meanings could be attributed to it when marking
goods and services. BOOTS can be (and is) registered for chemists, but
BOOTS could not be registered for footwear. Some surnames have the
possibility of being trade marked (see CIBA Trade Mark [1983] RPC 75 for
examples); very common surnames, such as Green, face greater difficulties
if they have not already been used as a trade mark. What of "Diana"?
Predicting the registrability of a name is not like predicting what time
the sun will rise tomorrow[36]^(9) and judges often tend to favour the use
of analogies. Perhaps the closest and recent case law analogy to "Diana"
occurred in Elvis Presley Trade Marks [1997] RPC 543 in which a Soho
souvenir dealer successfully opposed registration of a UK trade mark in
"Elvis" and "Elvis Presley." Both proposed marks failed the
distinctiveness test, ruled Laddie J., because "...the more famous Elvis
Presley is, the less inherently distinctive are the words `Elvis' and
`Presley' "(Elvis at 552)[37]^(10). If Elvis was and is famous, Diana, in
life and in death, is and was even more famous, even less distinctive, and
certainly so in the UK. In other words, if you see the name BOOTS, you say
to yourself, "yes, the chemist"; by comparison, if you see the name
"Diana", you do not say to yourself, "yes, the Diana brand of scented
candles."
The Elvis judgment also contains eerily prescient words for the "Diana"
registration when it addresses the origin function of trade marks, that
is, trade marks indicate to consumers the source from which goods
originate. Laddie J. concluded that when fans buy a poster or a cup
bearing the image of a star, "I have no reasons to believe they care one
way or the other who made, sold or licensed it", citing, as an example,
the indifference "as to source" that occurred "when a myriad of cheap
souvenirs" of Prince Charles and Diana were sold in 1981 to commemorate
their wedding (Elvis at 554).[38]^(11)
The Fund would no doubt argue that the 1981 situation was radically
different from that prevailing now and that consumers buying Diana
merchandise now do want to buy it from licensees of the Fund because some
of the purchase price will go to charities that the Fund supports. There
is some legitimacy to this origin argument. Nevertheless, authorised Diana
memorabilia will not emanate from a single source, but rather from tens or
hundreds of disparate profit-driven sources. Further, whether or not Diana
becomes a trade mark, there is nothing to stop Diana's supporters from
giving money directly to the charities of their choice without a licensing
middleman. The charities' financial health is not dependent on Diana
trinket sales; if they are, they should have another look at their
operations. So playing the "charity card" does not trump other policy
interests. In any event, awarding a trade mark in Diana would set a
worrisome precedent for later cases unless the holding of such a case is
limited, which would be atypical, to its particular facts; that is, trade
marks in non-distinct signs can be registered if some of the proceeds go
to charity. The TMA 1994 does not provide for such circumstances and to
grant a trade mark would be reminiscent of the special pleading that
resulted in the awarding, by statute, of perpetual copyright in Peter Pan
to a London hospital (CDPA 1998, s 301). The coherence of copyright - and
trade mark - would suffer another set back if such Peter Pan reasoning
were to escape the confines of statute.
The Fund could have side-stepped this distinctiveness problem, if before
applying for a trade mark, it had begun marketing "Diana" as a trade mark
on some products. A new proviso added to the TMA 1994 states that if,
before the application date, the sign "has, in fact acquired a distinctive
character as a result of a use made of it", a later objection that a sign
lacked distinctiveness would not, by itself, prevent registration (TMA
1994, s 3(1) proviso). Once a sign is already performing trade mark-like
functions (e.g. showing that a product originates from a particular
source), a rival trader cannot later challenge the sign's distinctiveness
as this has already been demonstrated in the marketplace. Perhaps in early
September and December 1997, when the Diana applications were made, the
Fund's solicitors believed they needed to act quickly and immediately
challenge potential merchandising rivals.[39]^(12) But this haste may, in
the end, cause the Fund much greater registration problems.
Another potential question mark over the proposed "Diana" trade mark
involves the use of a royal/national symbol, but I address this below in
Part 5. As for turning a particular photograph or portrait of an
individual such as Diana into a trade mark, such a step is, in most cases,
quite acceptable (Rowland v Mitchell [1897] 14 RPC 37 (CA);[40]^(13) for a
royalty case, see the 1978 trade mark registration of "Elizabethan
Mead"(Reg. No. 1,035,277) [41]^(14)). Successfully registering a
photograph or portrait does not, however, prevent someone else from
registering and using a significantly different photograph/portrait of the
same individual as long as there would be no confusion in the minds of
potential consumers. If a highly stylised cartoon of a smirking Queen
Victoria was accepted as a mark to sell condoms - mind you, some
monarchists might object - a photograph of a stern Victoria might be
registrable for baking powder. The Fund is attempting to solve this
multiple usage problem (for them) by registering 52 photographic images of
Diana, in short, by monopolising her image and monopolising it on a wide
range of goods. If some other merchandisers attempt to use another
photograph of Diana (perhaps a startlingly different photo) on their own
goods, the Fund would then presumably commence an infringement action on
grounds of consumer "confusion" and/or "likelihood of association" and/or
taking "unfair advantage" of the Fund's trade mark (TMA 1994, s 10).
The Fund's attempted image monopolisation is not, however, supportable and
contradicts the basic philosophy of trade marking. Unless the Fund is
actually planning to license the use of all 52 images - a highly unlikely
scenario that would result in frenzied commodification- what will occur is
the bad faith stockpiling of marks and images of Diana simply because
others might want to use them. (For case law forbidding defensive
registrations and stockpiling, see Imperial Group v Philip Morris [1982]
FSR 72 (CA).) The Act itself requires that a trade mark applicant must
state that he or she has a "bona fide intention" to use (or license use
of) the mark (TMA 1994, s 32(3)).[42]^(15) Trade mark law has
traditionally presumed that trade marks, as property rights, were given to
traders by the state in exchange for commercial use and to assist in
drawing a connection between a trade mark, the goods to which they were
affixed, and the consuming public. Without use, obviously there can be no
connection. To abrogate this use and connection requirement for Diana's 52
photographs would be undercut one of the central justifications for trade
marks, much like denying the work and authorship requirement in copyright.
It would be another manifestation of the further propertisation of
intellectual property and a break from the purportedly commercial
utilitarianism underlying trade mark law.
This monopolisation issue leads to related policy questions in trade mark
law and to my conclusion that what the Fund is actually requesting is
recognition of a right of publicity in Diana. Trade mark law assumes that
there is some correlation between the development of a particular good or
service and the name or brand under which it is sold. It does not aim to
protect a name or symbol per se, but rather that name as an advertising or
differentiating device. The symbol itself is not supposed to directly or
independently create utility. In the case of Diana, however, her name,
image, and personality have, by themselves, acquired wide fame for almost
20 years; only now is it being considered as a device, as a brand to sell
specific products. One of the sometimes unstated reasons that trade marks
cannot be acquired in a place name, such as "London", " New York" or
"Liverpool", is that such permission, if granted, would endorse the
private appropriation of fame, goodwill, and particular associations that
a trader had no part in creating.[43]^(16) In short, it would legitimise
naked free-riderism. On occasion, existing valuable signs can become
registered; Richard Branson's "Virgin" or "Sunlight Soap" are examples.
One commentator has argued, however, that "in most cases" when a symbol
acquires value before it is used as a trade mark, the trader acquiring
that mark has only a "very small advantage" over competitors because "most
of the value of any trade mark will be created with its product"
(Economides 1988, p 537). Diana is not such a case. Without the "Diana"
association, beanie babies or scented candles would just be typical beanie
babies or scented candles. Propertising Diana's name and creating
American-style publicity rights in her name under the guise of trade mark
are the real stakes.
In the same vein, one of the main stated functions of trade marks is their
investment function - "marks are cyphers around which investment in the
promotion of a product is built and that is a value that deserves
protection " (Cornish 1996, p 527). Yet, there has been no investment in
creating the brand name "Diana" in association with a product. Registering
a Diana trade mark would again endorse free-riderism rather than fulfil
any investment function.
[44]Top | [45]Contents | [46]Bibliography
(ii) Infringement
As a practical matter, the Fund will, I think, have great difficulty in
actually enforcing a "Diana" trade mark on a world-wide basis even if
chooses to establish and fund an expensive and proactive intellectual
property litigation arm. Already, the Fund's legal bills have been the
subject of controversy and the funding of an aggressive McDonald's-style
global litigation department would likely have to be paid for by increased
licensing fees and, in turn, by consumers. The "genie" of Diana has
already escaped from the lamp on a global basis. The Fund will now find it
extremely onerous to put it back in the lamp and undertake a controlled
release behind the protective fencing of intellectual property law.
Litigating and winning a few test cases will provide a minimal deterrent.
Yet, on the other hand, if the Fund does not pursue known alleged
infringers who are not paying the Fund for the use of Diana, current and
potential licensees may well ask: why should we pay licensing fees?
A spokesperson for the Fund has already stated that it is "not into
litigation" and has no intention of going after the many small merchants
and street vendors who are selling shelves full of Diana memorabilia. As
she said, "we have to be very careful that we're not overly vigilant"
(Christensen 1998). The tightrope that the Fund is walking is to acquiesce
to certain known infringements, such as those allegedly committed by
smaller British traders, but to bring infringement actions against larger
American traders. This "we're nice guys", public relations approach to
enforcement may play well within British public opinion but, if
maintained, may not play as well in court. First, any smaller traders who
rely on the Fund's clear assurance not to bring infringement actions
against them and who build up a "Diana" trade may well be able to use the
defence of acquiescence if the Fund later decides to take action against
them (see Vine Products Ltd. v Mackenzie & Co. Ltd. [1969] RPC
1).[47]^(17) Such merchandisers have been given an implied license to
trade in Diana goods. Second, such acquiescence is not a mistake made by
McDonald's, the restaurant chain, who have few hesitations in taking the
public relations flak involved in pursuing almost every potential
infringer, such as the owner of McMunchies, a Milton Keynes sandwich shop
(Moyes 1996). Many, including me, find such "big stick" litigation
repugnant, but McDonald's reasons that, without stamping out all
non-authorised uses of its trade marked name, the public will become
confused, their strong trade mark will become diluted, and their property
will, in time, lose its propertiness, its capacity to exclude. As one
trade mark attorney advises, "to maintain a monopoly in a trade mark, it
is important to act quickly when infringements come to light" (Fogg 1998,
p 79 ). With a possible Diana trade mark already weak in distinctiveness,
with her name and picture widely used on souvenirs without permission or
sanction for almost 20 years,[48]^(18) with her name and photo already
saturating the media for the past 18 months, and with many traders already
having an implied trading licence, maintaining the essential exclusivity
and propertiness of a Diana's trade mark will be a daunting and expensive
task. It will be interesting to see if stakeholders in the Diana legend,
her fans, endorse such a crusade and are willing to pay for it.
[49]Top | [50]Contents | [51]Bibliography
(c) Right of Publicity
As the right of publicity does not exist in the UK, I will discuss this
issue briefly here. One place to start is to trace out the jurisdictional,
temporal, and commercial trajectory of Diana's right of publicity from the
time she was alive in the UK to a California (or other) U.S. court where
the existence of Diana's right may, in future, be litigated. Here is that
trajectory:
 1. Diana was a public figure, in fact a public symbol, in the UK;
 2. The right of publicity is not recognised in the UK;
 3. Diana, while alive, never attempted to exercise this right anywhere in
the world;
 4. Diana, while alive, never attempted to exploit her name or image for
commercial purposes or private gain;
 5. Diana died and obviously can never herself exercise her right of
publicity;
 6. This non-existent right (in the UK) was bequeathed in a post-death
variation of her will to her sons, meaning that neither Diana nor
William and Harry had any expectation, often the touchstone or
justification for recognising property rights, that such rights could
have been exercised. (If they had such an expectation, such rights
would, at a minimum, have been included in the will she drew up in
1993 with the assistance of presumably experienced solicitors.);
 7. William and Harry turned over enforcement of this right of publicity
to the Fund;
 8. The Fund is now preparing to exercise that right in a foreign
jurisdiction, such as California, that does recognise that right under
what is popularly known as the "Celebrity Rights" act (California
Civil Code s 990).
To sum up, legal "strangers" to a foreign public figure are attempting to
enforce in Los Angeles a right, intended for the use of U.S. celebrities,
that a deceased, non-commercial figure could not assert in her own
country, never exercised, and never expected to exercise.
Certainly there have been few right of publicity actions that pack
together so many issues concerning the jurisprudential basis of the right
of publicity, descendability, duration, economic justification, cultural
access, statutory interpretation, conflict of laws, and other assorted
policy matters. Hefty U.S. law review articles have written on each one of
these issues. If a Diana right of publicity case actually goes to court in
the U.S., it will likely be a judgment of interest. Take the question of
foreign nationals claiming such a right. According to Thomas McCarthy, the
recognised U.S. expert on the right of publicity, there is only a single
reported case during the nearly 50 years of this complex line of cases
involving a foreign national successfully claiming a right of publicity in
the U.S. and, hence, overcoming conflict of laws objections (McCarthy
1988, release #20 (6/98) p 11-13). In this case, Bi-Rite Enterprises, Inc.
v Bruce Miner Co. 757 F2d 440 (1^st Cir. 1985), members of three British
pop groups, Judas Priest, Duran Duran, and Iron Maiden, sought an
injunction to prohibit distribution in the U.S. of unauthorised posters of
their groups. They were successful. Yet the many differences between the
two cases are obvious and these are perhaps best revealed in the quotation
from Zacchini, the leading U.S. Supreme Court case on publicity rights,
that was used by the U.S. appeal court in Bi-Rite as the "basic policy
interests" underlying this right.
"Of course, [the] right of publicity here rests on more than a desire to
compensate the performer for the time and effort invested in his act;
the protection provides an economic incentive for him to make the
investment required to produce a performance of interest to the public"
(Zacchini v Scripps-Howard Broadcasting 433 U.S. 562, 576 (1977).
One might agree that human cannonballs, such as plaintiff Zacchini, need
an economic incentive to hone their particular skills. But surely there
are certain limits to publicity rights and their enforcement. What is the
considered and coherent policy rationale that can justify awarding rights
of publicity to princesses, prime ministers, or presidents, alive or dead?
Do they need a further financial incentive, beyond their salaries, to
perform their respective functions? And are they motivated by a need to
provide financial security for their dependants, another justification
cited for the right of publicity and its descendability (Felcher & Rubin
1979, pp 1618-1619). Those making such claims for Diana have, I believe, a
heavy burden in justifying them; a successful claim to "Diana" by the Fund
would represent a another significant and worrisome private appropriation
of the public domain.
What is really at play, I suggest, is an attempt by the former inner
circle of the deceased Princess to protect what might be called her
dignity interests. They want to sweep tacky Diana merchandise off the
shelves; they say it offends her memory. Displaying such merchandise is
considered, in effect, a libel or a defamation of a deceased person. Yet
other dead persons are sometimes defamed and there is no legal course of
action open to their descendants (Hatchard v Mège (1887) 18 QBD 771).
Reputation interests are "personal" interests and expire at death, even
for princesses. Without such a limitation, courts would be clogged with
libel suits following the release of an unflattering biography of a
deceased person and historians would have to have their research vetted by
libel lawyers. Even as vigorous a proponent of expansive publicity rights
as McCarthy has warned that "the law should not allow `personal' dignity
or reputational interests to be asserted under the guise of a post partem
Right of Publicity" nor should this right "serve as a substitute for the
forbidden action against the defamation of the dead" (McCarthy 1988,
release #1 (2/88) p 19-16). Trade mark and copyright law should not serve
that function either.
[52]Top | [53]Contents | [54]Bibliography
4. Owning Diana's Name and Likeness:
(a) The Fund's claim: What does it really own?
When the contents of Diana's revised will were disclosed in March 1998,
media attention focused on the amount of money Diana's had left to her
sons, £12.9 million net, and on a collection of mementoes bequeathed to 17
godchildren. As a legal question, such transfers are straightforward. When
she died, Diana held the money (mostly in the form of stocks and bonds)
and the nature, description, and ownership of the mementoes were,
presumably, beyond dispute. Hence, she had an unchallengeable legal right
to transfer them. The media paid much less attention to the far more
significant variation or, more accurately, post-death addition, to Diana's
will undertaken by her solicitors: the ostensible transfer of her entire
intellectual property rights to her sons. Most people assumed, no doubt,
that these transfers were equivalent to the transfer of the money and
mementoes; that is, rights to copyright are often included in a will,
Diana owned all of the intellectual property rights in her name and image
when she died, and thus she had a legal right to transfer them for her
children's benefit. The Times reported that Diana's revised will ensures
her sons will have "a potentially large income from intellectual property
rights - copyright fees for the use of images of the Princess, for
example"(Hamilton 1998). In other words, the transfer of her intellectual
property rights was portrayed as another commonplace legal event and
anyone else exercising these rights would be infringing the boys' rights.
The fact that she had undisputed title to shares and mementoes was
conflated with the purportedly undisputed title to Diana's intellectual
property rights. This is a highly misleading assumption.
Perhaps the best way to unpack this assumption is to ask: exactly what
intellectual property rights did Diana own at the time of her death? (A
quick digression into basic succession law: (a) An ancient legal principle
dictates that "No man can devise anything but what he has to his own use"
(Bransby v Grantham (1577), 2 Plowd. 525, 526); (b) As explained above,
there is no legally-recognised property interest in a name, whether Diana
or John Doe, and hence no property interest to transfer; (c) A person can
only transfer property which he or she owned at death: "a will speaks from
death as to property"(Kerridge 1996, p 215); (d) a testator such as Diana
does not hold title to property that he or she might obtain in the future,
known as a "bare possibility."[55]^(19) Such mere expectancies cannot, by
themselves, be transferred (Jones v Roe (1793), 3 Term Rep 88).) [56]^(20)
Here is Diana's intellectual property inventory: I am not aware of any
patent rights Diana held. As for copyright, her possible claims would be
limited, in all likelihood, to the following: (a) copyright in any written
works she authored, probably limited to personal letters; (b) possible
(though much disputed) copyright in any tape recorded interviews, such as
those conducted by Andrew Morton, author of the best-selling Diana, Her
True Story-In Her Own Words ;[57]^(21) (c) copyright in those photographs
of Diana in which the photographer transferred copyright to her, for
example, by gift or by contract as a commissioned portrait. In all other
cases, copyright in her image would, as explained earlier, subsist with
hundreds of photographers; (d) possible (though again debatable) copyright
in her signature as an original artistic work.[58]^(22) As for trade mark,
she had no property rights in a "Diana" trade mark as no such trade mark
had been applied for before her death.[59]^(23) The possibility that
Diana, if she were still alive, might have applied in the future for a
trade mark in her own name or image does not give her Estate or the Fund
any property rights today. As for publicity rights, she had none in the UK
and may be successful in asserting such a claim in the United States or
other jurisdictions that may recognise claims of foreign nationals. In
sum, when Diana transferred her intellectual property rights to her sons,
she was not transferring a great deal. Most of the intellectual property
rights seemingly claimed by the Estate - because Diana purportedly devised
them - did not and do not exist.
The notion that Diana held extensive intellectual property rights in her
name and image was reinforced when the re-written will transferred her
intellectual property rights to a separate fund to benefit either Harry
and William or charities, such as the Memorial Fund. Harry and William
understandably had no stomach (nor the required marketing infrastructure)
to launch a world-wide "Diana" merchandising campaign that the Fund has
undertaken. This seems quite straightforward. Yet, at the same time, the
media suggested that this post-death transfer of intellectual property
rights - first to the boys, then to the Fund - was motivated by a desire
to reduce the tax liabilities of the two princes, a common method for
richer families, such as the Windsors, one of Britain's wealthiest
families, to shift and reduce tax liabilities. "Some of the tax
liabilities might be alleviated if the intellectual property rights are
transferred to the Princess of Wales Memorial Fund, which is a charity,"
The Times reported (Boffey 1987). The coherence and fairness of such
post-death tax shifting can be challenged [60]^(24) but, as a practical
legal move in this case, it seemed to make sense. Yet to follow the logic
of this motivation suggests that Diana owned sweeping intellectual
property rights in herself when she died, that these rights were worth
hundreds of millions of pounds, and, as The Times reported, that the
resulting huge tax liability from her existing rights "could wipe out all
the cash the young Princes would inherit." (Id.) In fact, as suggested
above, the total monetary value of Diana's intellectual property rights at
the time of her death was much more modest. Moreover, if neither Harry and
William nor Diana's Estate and the Fund attempted to establish new rights,
the tax bill would be negligible. What is at stake, then, is not the
seamless transfer of existing intellectual property - from Diana to her
sons to the Fund - but rather, the creation of new (that is, previously
non-existent) intellectual property rights in "Diana." If these claims are
not recognised by the courts, neither the Estate nor the Fund will be
deprived of any property rights because they never existed. The
conclusion: whatever happens, there will no intellectual property loss,
only potential property gains.
This conclusion does not imply that, at the time of her death, Diana's
name and image had no value in the legal sense of that word. But, except
for the limited intellectual property rights mentioned above, such value
was "propertyless" value. As Cohen explains, just as "property may exist
without value," e.g. an individual's personal papers of no value to anyone
else, "value may exist without property", e.g. air or sunshine (Cohen
1954, p 364). In other words, Diana's value or utility had the capacity to
satisfy human needs and desires (and continues to do so), but, unless the
state recognises a property right in her name and unless the state and the
Fund create a scarcity in the Diana name and brand, a principal function
of trade mark law, that value will not be property and certainly not
private property. And creating scarcity is one of the main aims of the
Fund's merchandising campaign. As a solicitor for the Estate explains, "I
hate to use the word `brand' because it sounds horrible, but [Diana's]
intellectual property rights are better used at a rarefied level"
(Christensen 1998).
The above orientation significantly denaturalises the expansive claims of
the Estate and the Fund reported by the media. Commercial enterprises
involved in litigation with the Fund may have few hesitations in pointing
this out.
[61]Top | [62]Contents | [63]Bibliography
(b) The Public's Claim: How were Diana's Name and Image Created?
If the Estate and the Fund currently hold few intellectual property rights
in Diana, are they any other possible claimants? An alternative
orientation, sometimes called the "social relations" approach to property
(Singer 1997, p 20-23), would ask: over the past 20 years, how did Diana's
image become so valuable? Who created it? Was it an individual act of
creation, the product of individual genius, or was it created by many
people within a particular societal relationship, structure, and context?
Given that Diana was a public figure par excellence and given the
particular relationships and intimacy, real or imagined, that existed
between Diana and her legions while she was alive, should private parties
be given the power, now that she is dead, to exclude others - or exclude
them unless they pay a licensing fee charged, in turn, to consumers?
Should Diana's value, which during her lifetime lacked "private
propertiness" because of its endless supply and its royal connection, now
become commodified as private property, a scarce intellectual property
resource?
Such a social relations approach to intellectual property can be uncovered
in an 1980 U.S. Elvis Presley case. It involved an attempt by a
not-for-profit foundation in Elvis' hometown of Memphis, Tennessee to sell
pewter replicas of a planned Elvis statute in Memphis as a fund-raising
technique. In refusing to issue an injunction requested by a company that
had been assigned Elvis' rights of publicity, a U.S. appeal court
explained: "fame is often fortuitous and fleeting. It always depends on
the participation of the public in the creation of the image. It usually
depends on the communication of information about the famous person by the
media....The memory, name and pictures of famous individuals should be
regarded as a common asset to be shared " (Memphis Development Foundation
v Factors Etc., Inc. 616 F.2d 956, 958, 960 ( 6^th Cir., 1980) cert denied
449 US 453 (1980)).[64]^(25) After more than 18 months of unceasing media
coverage that focused on the supposed unique fame and special qualities of
"England's Rose", applying and deepening this orientation is helpful in
challenging the conventional wisdom about Diana's fame, and, in
particular, how it arose.
The transformation of Diana Spencer, kindergarten teacher, into Diana,
Princess of Wales, was the result of both happenstance (meeting and
marrying Charles) and of pre-existing structures (the existence of the
monarchy). Although she certainly developed, in time, more style and
public relations savvy than the rest of the royal family, Diana
principally acquired her fame and celebrity status because she was a
member of that taxpayer supported, constitutionally prescribed institution
and family. Royal family membership is itself determined by chance -
"after all, it is merely an accident of birth that has made Prince Charles
and not my brother the heir to the throne," Williamson (1986, p 79)
reminds us - and its pre-eminence is based on inherited titles, including
the title "Princess of Wales." Moreover, her image was created and played
out within an existing system of exalted social meanings and privileging
roles, such as "princess" (with all the sense of fairy tale and of future
destiny implicit in that word ), "wife" (for 15 years) of the future king,
"mother" (forever) of his successor. Much (though not all) of Diana's
fame, then, was not principally self-created, but rather, for the most
part, pre-determined and inevitable. The cultural production that creates
fame "is always (and necessarily) a matter of reworking, recombining, and
redeploying already-existing forms, sounds, narratives, and images" (Madow
1993, p 196, emphasis in original). Even more than other deceased
celebrities and icons - and Diana's fame is sometimes compared to that of
Elvis and Marilyn Monroe - her fame was conferred primarily by her
structured pre-existing relationship, a monarchical relationship, with the
British people. Her title of "princess" made her a predestined candidate
for extensive media coverage, no matter what her personality or talents.
And, because of royalty's still exalted, though recently more tarnished,
role in British society, she was also assured of having her fame
recognised and, in turn, created by the British people, again without
regard to personality or talent. You don't need either to be famous if you
are a member of British royal family.
Of course, Diana was not, in some ways, a typical royal. It was precisely
because of her personality, her talents (for example, at fund-raising for
charities and at marketing royalty itself), her appearance,[65]^(26) and
the happenstance of her unexpected death that her fame and role increased
several fold in comparison with the typical royal. Some have suggested, in
fact, that "her greatest achievement was to craft an `image' for herself
"(Bhabha 1998, p 106). This individualised notion of creation further
mythologises both the nature of image making and Diana; in any event, her
fame was and still is a relational fame. As a legal subject, Diana became
the "The People's Princess" precisely (and only) because of her
relationship with "the people" and only because some of "the people", her
subjects, recognised her as such. Similarly, when Diana spoke in 1995 of
wanting to become a "Queen in people's hearts", that status could only be
realised through a process of mutual recognition, by people finding a
place within their hearts for her.[66]^(27) Diana was, as well, the object
of more than the usual media fixation with the royals. It was this media
attention and particularly the saturation photographic coverage of her
every move - whether dancing with John Travolta at the White House or
inspecting mine fields in Angola - which did much to give her name and
image value. Even more than most other celebrities, Diana's image was, in
large measure, a created image. Simultaneously and as a response to this
coverage, it was participatory public events and spectacles, such as her
1981 wedding or the outpouring of grief when she died, that solidified her
fame.
The point then is neither to deny agency to Diana nor to deny she had
particular talents and abilities and became a highly personalised symbol
for many people around the world. Rather, we need to emphasise what was
principal and most determinative of her fame and its creation, and what
was secondary. In such circumstances, the typical justifications for
intellectual property ownership rights, such as a reward for labour and
individual skill or for risky investment, cannot be coherently applied.
Diana was primarily a public creation and should remain public, not owned
and commodified as if she was a private creation.
[67]Top | [68]Contents | [69]Bibliography
5. Access to Diana's Meaning in Public Cultural Spaces
The ownership of intellectual property, like other property relationships,
expresses a legally sanctioned power relationship, the power over things,
and the power to exclude. Here I want to suggest a few cultural
consequences that will (or may) occur if the name and image of Diana, as a
public creation, undergoes another transformation and becomes a privately
owned trade mark or other form of intellectual property.[70]^(28)
Using national symbols: When trade marks first became part of an
internationally-recognised system at the 1883 Paris Convention for the
Protection of Industrial Property, one entire article, Article 6, was
devoted to the prohibition of trade marks in state emblems, flags, and
other national symbols. Delegates believed such symbols should remain in
the public domain and not be used to the advantage of individual traders.
In the same spirit, the TMA 1994 ss 4, 57-59, contains prohibitions
against registration of the Union Jack, the Olympic Symbol and, of
particular interest in the case of Diana, representations of any member of
the Royal family or devices suggesting Royal patronage (ss 4(1), 99). One
can get into a spirited debate whether Diana was a member of the Royal
family after her divorce; what is not debatable is that she acquired most
of her fame and value while a member of that family. And certainly many
prospective consumers of Diana memorabilia will think they are purchasing
a representation of a royal figure, the admittedly unofficial "People's
Princess" and "Queen of Hearts". In any event, such representations can be
used with the consent of the Royal family. The end result, authorised or
not, of turning Diana into a trade mark would be, however, the
propertisation of a national symbol.
Symbols as communication tools: What distinguishes certain famous names
and symbols - for example in the U.S., Martin Luther King Jr. or in the
UK, Diana - from ordinary names is "that they are names which convey
meaning....(they become) a symbol...a tool of communications, much like
any other word in the dictionary ...(and) function principally to
communicate a concept "(Jollymore 1994, pp 125, 130). Diana herself has
become a tool of communication and taken on many meanings, ranging from
"the greatest force for republicanism since Oliver Cromwell" to "the
American princess we (Americans) never had", from a "philanthropic
`transindividual'" to a "tremendous natural flirt" and "fashion icon". One
of the main aims in acquiring intellectual property in a name or image is
to control the meanings of that sign and to authorise or refuse its use by
others. If, for example, an anti-landmines group wanted to use Diana's
name or image to make a political point or as a device to sell own
T-shirts, that is, as a communications tool, the Fund could refuse such a
use or forbid certain other representations that it did not endorse. The
Fund would be given power over Diana, it would become the cultural
authority over her meaning, a move simultaneously reinforcing the
authority of royalty itself. Alternatively, the Fund might suggest that
the number of "Diana" representations should be restricted; scarcity
usually increases value. This inhibiting approach has already taken hold
at the Home Office which, with the consent of The Fund and Buckingham
Palace, has rejected (as of July 1998) more than half of the 100 "serious
applications" from local authorities and institutions wanting to name
public buildings and other facilities after Diana. "We need to keep a
tight rein on namings because we do not want to encourage a cult of
Diana", said Paul Burrell, Diana's former butler now associated with the
Fund (Hardman 1998). Coombes provides us with alternative orientation:
intellectual property law prevents "us from using the most powerful,
prevalent, and accessible cultural forms to express identity, community,
and difference" (Coombes 1991, p 1855).
Free speech issues: The Fund demonstrated this "authority over" attitude
in early 1998 when Mirror Television announced that it would be making a
docu-drama movie, titled `The People's Princess - A Tribute'. Lawyers for
the Fund quickly dispatched a letter stating that "[p]ermission to exploit
the name, image and likeness of Diana, Princess of Wales is required
before such a project can proceed"(Mirror Television press release, on
file with author). This specious claim had no legal basis. No actual legal
action followed and the movie was shown on television. Yet, if the Fund
does acquire a trade mark in Diana, its legal basis to stop production and
screening of such movies would be strengthened. Even if it did not succeed
in court, it possesses significant financial and legal resources to harass
filmmakers, photographers, authors, and others who might want to show
works the Fund does not approve. Calling the Fund's application "a
frightener", London media lawyer Robin Fry has said "what is worrying is
that instead of being used for legitimate commercial purposes, this will
be a means of censorship"(Moyes 1997).[71]^(29) In the U.S., its First
Amendment occasionally provides at least some protection against such
censoring attempts, though even here, in many conflicts between a property
right (such as a right of publicity) and free speech, property interests
tend to emerge victorious (Jollymore 1994, pp 138-141). In the UK, which
does not provide constitutional protection for speech, such concerns about
free speech are even more pressing as The Spycatcher case revealed.
[72]Top | [73]Contents | [74]Bibliography
6. Conclusion
In a 1995 interview with the BBC, Diana concluded that "they've decided
that I am still a product, after 15, 16 years that sells well, and they
all shout at me, telling me that: `Oh, Di, look up. If you give us a
picture, I can get my children to a better school' " (Christensen 1998).
It should come as no surprise then that the Fund would decide to privilege
one of her talents, that of royal/celebrity endorsement, nor that
prospective licensees would recognise that her widespread fame could also
be used to sell beanie bears and other commodities. Globalisation and the
technological advances of the media in recent years have further increased
her value. Shutting down the merchants of tacky Diana memorabilia, who
also understand her value, is cited as one of the main reasons why the
Fund requires intellectual property protection for Diana. Even if such a
goal could be realised, the consequences - financial, social, legal, and
cultural - do not justify such protection. The question remains: why must
something be owned by someone simply because it is valuable?
[75]Top | [76]Contents
--------------------------------------------------------------------------
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--------------------------------------------------------------------------
Footnotes
[78]^( 1) Yet intellectual property law, in appropriating real property
discourse for its own purposes, has borrowed only part of that discourse,
the part that emphasises absolutist Blackstonian notions of "sole and
despotic dominion" over property. What it has ignored are the complex
regulatory frameworks governing real property uses and the
responsibilities of real property ownership. These are significant
omissions.
[79]^(2) Madow's article (1993), from pp 147-178, provides perhaps the
best short legal narrative on how names and personal images came to
acquire legal protection; this section draws on his work.
[80]^(3) In both jurisdictions, it was of course possible, with varying
degrees of difficulty, to register a name as a trade mark when it was
associated with a particular product. Thus, "Wedgwood" could be registered
as china, but Josiah Wedgwood did not have an intellectual property right
in his own name per se.
[81]^(4) There is not the space here to pursue the question as to why this
divergence occurred. The perhaps off-handed suggestion of Madow (1993), p
154, n 127, that Britain has not developed a right of publicity because it
is thought that prominent British persons "ought to shrug off unauthorised
appropriation with a kind of aristocratic contemptuousness" is based, I
think, on a distorted and outdated view of contemporary British society.
Neither The Beatles nor Liam Gallagher and Tim Henman were or are
aristocrats. Several factors explaining this divergence might include: 1)
the relative underdevelopment of the British film industry compared to
Hollywood, one of the most powerful lobbyists for celebrity rights of
publicity; 2) similarly, because of the imperial hegemony of American
popular culture compared to Britain's, the stakes are less; 3) British
popular culture, such as the BBC, remains somewhat more public and
non-commercialised, though recently the BBC has become aggressive in this
area in its claims, for example, to protect "The Teletubbies" from
misappropriation; 4) the right of privacy, a very limited right in the UK,
has in the U.S. become transformed, by a circuitous route, into a right of
publicity; 5) there is a more pervasive "rights" legal culture in the U.S.
I have also omitted here any extended discussion of why, in the current
era, persona has been transformed into property; Armstrong (1991) provides
one of the most cogent explanations of this phenomena, as does Gaines
(1991).
[82]^(5) Bringing a passing off action would be another possible course
open to the Estate and the Fund against alleged "Diana" infringers (see
Cornish 1996, pp 533-562) ; for reasons of space and because the Fund is
seeking to register Diana as a trade mark, I have omitted any discussion
of passing off from this article.
[83]^(6) The analogy to Michael Jordan is not accidental. One of Jordan's
intellectual property lawyers, Mark Lee, is also representing the Fund in
its action in California against the Franklin Mint (Reuters 1998, and
personal conversation).
[84]^(7) Yet when royalty is a party claiming intellectual property
rights, judges can initiate some quite creative jurisprudential voyages as
was the case in Prince Albert v Strange [1849] 1 Mac & G 25 which did much
to establish breach of confidence law.
[85]^(8) Again, the royalty factor might unfortunately be taken into
account by judges.
[86]^(9) For example, although Canada's approach to trade mark is derived,
in great measure, from that used in the United Kingdom, PERFECTION is a
registered trade mark for dairy products in that jurisdiction (Vaver 1997,
p 199). Some cases are relatively clear-cut, but many others could
potentially fall on either side of the registration divide.
[87]^(10) The Elvis case was adjudicated under the former 1938 Trade Marks
Act. Although the TMA 1994 does, in some instances, make registration
easier, judicial interpretation of distinctiveness has not significantly
changed on this particular question..
[88]^(11) The Elvis judgment is also not helpful to the Fund's claim for a
trade mark in Diana's signature; see Elvis at 557-562 for why Elvis'
signature was refused registration. As Laddie J explains at 559, "having
regard to the wide infringement provisions of the 1994 Act, an unqualified
registration of the [Elvis signature] mark might well give rise to
protection far beyond the graphic style used " and include protection for
the words "Elvis Presley" in any script or typographical style. In the
case of Diana, the use of her name in any graphic style without the Fund's
authorisation would potentially infringe if a signature trade mark is
acquired. That is a truly Orwellian idea to contemplate. And an even more
Orwellian idea: if rights of publicity or trade mark had been granted in
the pen name of the late author Eric Blair, we might not be able to invoke
Orwell's name to describe the phenomenon. Unless we get permission.
[89]^(12) Yet, as explained in note [90]23 post, these rivals could not
themselves have acquired a Diana trade mark, the real prize.
[91]^(13) It is not possible, however, to register the photograph or
portrait of a living person or of a recently deceased persons without
permission from the person or, for the latter, their executors. Trade
Marks Rules r 18.
[92]^(14) Attached to this registration, which features a drawing of
Elizabeth I drinking mead from a wine glass, are the words: this
"registration shall give no right to the exclusive use of the words
`Elizabethan Mead' and the device of a wine glass." What was registered
was one particular image on one particular type of mead.
[93]^(15) The TMA 1994 does provide for the revocation of a trade mark
after five years of non-use under s 46(1)(a). Hence, a trade mark in any
of the 52 unused Diana photos could be revoked if they are not used. But
once the monopolisation of such photos for commercial purposes is
legitimated, competitors will face a difficult time catching up later. Not
even the United States Patent and Trademark Office, which employs one of
the lowest hurdles for trade mark registration, allows the registration of
multiple images of a celebrity in a single registration ( McGeehan 1997,
pp 353-354).
[94]^(16) The usually stated objection is unfair competition. If the Fund
succeeds with its trade mark registration, there will no competition in
the commercial exploitation of Diana.
[95]^(17) This acquiescence is also sometimes called `estoppel by
acquiescence'. Gray (1993) contains a full chapter on proprietary estoppel
which he formulates for land law as follows: "If the owner of title in
land has expressly or impliedly given some assurance respecting present or
future rights in his land, he cannot conscientiously withdraw that
assurance if the person to whom it was given has meanwhile relied upon it
to his own detriment "(p 314). Proprietary estoppel is not as commonly
used in intellectual property disputes as in land law, but the recent
expansion and flexibility of the doctrine, as explained by Gray, suggest
that it may have a greater role in the future.
[96]^(18) There is not the space here to explore a wider question of
acquiescence/estoppel. If an image/representation (for example, of Diana)
has been traded without sanction, in fact usually with encouragement, for
almost 20 years, and if the widespread public use of that image, including
by the media, that done much to increase the value of that image,
permitting the propertisation of that image after death creates a bizarre
type of "death dividend." Given the emotionality that erupted over Diana's
unexpected death, I appreciate that this is perhaps a somewhat indelicate
matter to raise, yet it appears to underlie part of the Diana
merchandising strategy.
[97]^(19) Black's Law Dictionary defines a bare or naked possibility as a
"bare chance or expectation of acquiring property or succeeding to an
estate in the future, but without any present right in or to it which the
law would recognise as an estate or interest".
[98]^(20) There are certain technical exceptions. If a trade mark
applicant dies after the application is submitted but before it is
actually entered on the Trade Mark registry, another person able to prove
that he or she has the same rights as the applicant can claim rights in
that trade mark if it is successfully registered. Trade Marks Rules r 62.
[99]^(21) Significantly, although some legal commentators suggested Diana
(and since her death, her Estate) owned copyright in the spoken words used
in Morton's book (Dyer, 1997), the Estate did not try to stop publication
of the book by claiming copyright infringement.
[100]^(22) Thanks to David Vaver for suggesting this item for Diana's
potential copyright inventory. Copinger and Skone James on Copyright
(13^th ed., 1991, with supps.) mentions, in para. 2-23, that an unreported
decision has held that a signature can be accorded artistic copyright.
Still, it remains an intriguing question whether writing your name
requires sufficient skill, labour and judgment to qualify as an artistic
work. And only an exact copy of the signature would likely infringe
(Kenrick v Lawrence (1899) 25 QBD 99 (claiming copyright in a plain
drawing of a hand used to show voters where to place their X on a ballot).
[101]^(23) The Estate does have the power to stop anyone else from
registering "Diana" as a trade mark and, in the spirit of this article, I
would support the exercise of this right against persons such as the
opportunist Harrow timber merchant who, three days after Diana's death,
applied for a trade mark in "Diana" and announced he wanted to use it to
establish a world-wide garment industry. The same objections hold for the
Franklin Mint's alleged attempt to trade mark "Diana". (In any event, such
registrations would be considered bad faith registrations under TMA 1994,
s 3(6)). The Registrar is permitted to refuse the registration of a trade
mark containing the name or representation of any person living or
recently dead person on a mark without the consent of that person or
his/her executors or other legal representative. But exercising this
"personal right" (and note it is not a "property right " because there is
no property in a name) against unauthorised persons does not automatically
give the executors themselves registrable rights to a name as there might
be other objections. For example, the executors of "Ronald McDonald" would
have a difficult time getting a trade mark in that name as it is already a
registered trade mark of the McDonald's hamburger chain.
[102]^(24) Not all jurisdictions permit post-death variation of wills as
wills are supposed represent the intent of the (living) testator. Such tax
shifting can also be challenged on re-distributive grounds.
[103]^(25) A subsequent right of publicity statute, Tennessee Statute, ss.
47-25-1101 and 47-25-1108, has overridden this opinion.
[104]^(26) "What will remain in the memory...more than anything (is) her
beauty" in how The Daily Telegraph explained the significance of her
appearance in the second sentence of its 1 September 1997 obituary. A
person's appearance is primarily a matter of luck or accident.
[105]^(27) For a much fuller treatment of this phenomenon, the reader is
referred to the work of Edelman (1979), especially Chapters 1 and 2.
[106]^(28) Several commentators (Coombes 1991; Gaines 1991; Madow 1993)
have written eloquently and at length about the relationship between
intellectual property and cultural access and I will not repeat here their
individual and collective insights.
[107]^(29) At this moment, Diana is perhaps an unlikely target for parody.
If she ever is such a subject, courts are unlikely to look favourably on
such a representation; see Schweppes Ltd. v Wellington Ltd. [1984] FSR 210
(CH) (infringement of copyright).
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