Introduction

The essence of the problem of appropriation of personality may be put very simply: if one person (A) uses in advertising or merchandising the name, voice or likeness of another person (B) without his or her consent, to what extent will that person (B) have a remedy to prevent such an unauthorised exploitation? The practice of using valuable attributes of personality such as name, likeness and voice in advertising and merchandising is common. In many cases B might be a famous person, although this is not invariably the case, since the images of people with no obvious public profile have often been used in advertising. Ordinariness does not necessarily confer immunity from unauthorised commercial exploitation, although those most likely to seek legal redress are the famous and the well-to-do.

The practice of appropriating personality has a long history. As early as 1843 the Edinburgh Review noted that Mr Cockle's Antibilious Pills were recommended by, amongst others, ten dukes, five marquesses, seventeen earls, sixteen lords, an archbishop, fifteen bishops and the advocate general, before it went on to castigate advertisers for fabricating most of their product endorsements. Ironically many of these figures were comparatively unknown until the advertisers conferred an enhanced measure of celebrity upon them, leading the public to identify with them solely in their capacity as endorsers of the advertisers’ products.