Much to the delight of the general public, Netflix announced that hit show “Tiger King” is gracing our screens once again, with a second season. Famous for its big and outlandish personalities, as well as its dramatic storyline, Tiger King got most of us through the first lockdown in the UK and became the subject matter of many memes online. Unfortunately, there is one person who is not excited about this announcement: Carole Baskin.
Carole, who became a household name in 2020, previously expressed annoyance with how she had been portrayed in the show and said that she would not appear in another season. Following the announcement of the second series, she sued Netflix for breach of contract, arguing that she did not sign appearance release forms for Netflix to use footage of her and her husband following the first Tiger King.
How would this case look in the UK?
We’ve not seen the contract between Carole and Netflix so can’t comment on that. However, putting the contract to one side, are there any intellectual property rights that could be used to bolster Carole’s claim, if it were being brought in the UK?
Whilst the footage and its underlying elements (e.g. background music) would likely be protected by copyright, Carole would not own that copyright and so cannot dictate how that footage, etc is used (or not used).
But what of images rights? Are these rights that are recognised in the UK?
The simple answer is no.
The more complex answer is that, whilst UK law does not recognise image rights per se, there are other tools that can be used to achieve something that looks broadly like a right to control your image.
In recent years, Rihanna was famously able to argue that TopShop could not use her image on a t-shirt. Whilst Rihanna did not own the copyright in that photo she was successful in arguing that the use of that photo constituted passing off, e.g. use of the photo falsely suggested that she endorsed or was in some way associated with the product that was sold by TopShop.
The situation is therefore very different from the one that Carole finds herself in; one of the reasons that Rihanna was successful in her claim was because she had previously collaborated with brands, including TopShop, in designing clothing ranges. Use of her image against that background, for an entirely unconnected range of clothing, was therefore impermissible.
In comparison, Netflix is using film footage. It is heavily marketed under Netflix’s Tiger King brand; that Carole’s image appears in the documentary (insofar as she is a participant) would not constitute a misrepresentation that the documentary was created by or endorsed by her.
Breach of confidence
In addition to the law of passing off, the law of confidence could arguably also be relevant here.
In 2004, Naomi Campbell was able to successfully sue the Mirror newspaper for printing photos of her, taken as she left a Narcotics Anonymous meeting. She had not taken the photo, and so did not own the copyright.
However, the House of Lords (as it then was) considered that in printing the photo of Ms Campbell, the Mirror had committed a breach of confidence at common law.
The Court found that confidence will be breached in such circumstances if the information (that Ms Campbell had attended a NA meeting) was obviously private and disclosure of that information (through the publication of the photo and associated story) would give substantial offence to a person of ordinary sensibilities placed in similar circumstances.
Whilst the law on these types of issues has moved on considerably (to the point that incursion on privacy, even if there has been no misuse of information, is possibly actionable) neither the law of confidence or privacy considerations would be likely to assist Carole.
After all, she knew that she was being filmed for a documentary to be streamed through Netflix and actively participated in that filming. She may not like the way that she is now portrayed but, subject to any misleading editing being considered defamatory, it is unlikely (absent a contractual right to do so) that she would be able to prevent the footage from being used, had she argued her case in the UK.
How can Nelsons help
For further information on the subjects discussed in this article or any related topics, please contact Kristina or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.