12 Nov Tina Turner sues Tribute Act
The Queen of Rock ‘n’ Roll,Tina Turner, is suing a tribute act in Germany for looking too much like her.
The legendary singer’s legal action relates to Dorothea ‘Coco’ Fletcher, a Tina Turner tribute act in her 30s, who performs an unofficial show called Simply The Best. Tina Turner claims Ms Fletcher looks so much like her in promotional posters that fans are likely to mistakenly think Ms Turner is involved in her show’s production.
The lawsuit, which has now reached the German Federal Court is brought against Cofo Entertainment, a German firm that represents Ms Fletcher and other tribute acts including tributes to the Beatles, Elvis Presley and Frank Sinatra.
The posters for the show were changed after Turner was successful at an initial court hearing, when a court in Cologne found that the posters could be misleading to consumers. However, on appeal, the court decided that the risk of confusion did not outweigh Ms Fletcher’s right of artistic expression in relation to the posters. The case is now to be heard in the Federal Court and is expected to proceed early next year.
Ms Turner’s argument is that the posters are not ‘art’ but merely advertising, and that Ms Turner should have control of when her name and image are used for commercial purposes. Lawyers for Cofo Entertainment say that consumers would expect a tribute act to look like the real artist and would not be confused. They also say that a ruling against them could threaten the long-standing tribute act industry.
In England & Wales a claim of this nature would need to be brought as a claim in passing off. This is an action which can be brought by someone who has a reputation and goodwill in a brand or product, where someone else deceives the public through a misrepresentation into thinking that their product is part of that brand, or is endorsed by the brand, and which results in loss or damage to the brand.
Rihanna recently brought a passing off claim against Topshop over a T-shirt which featured a photograph of her but was not connected to or endorsed by her. Rihanna, who herself has a merchandising and endorsement brand, successfully argued that consumers would be confused into thinking the T-shirt had been endorsed by her.
In TV production, passing off complaints sometimes arise in connection with programme titles, for example when a title includes words and phrases (including registered trade marks) closely associated with other businesses, without consent.
Normally, the use of such words and phrases in titles is defensible in law because the use is descriptive in nature – they are not being used in a trademark sense ‘in relation to’ goods and services i.e. to denote trade origin.
Nevertheless, legal advice should be sought, particularly when considering using registered trademarks in titles without consent, as complaints can be time-consuming and expensive to deal with, irrespective of whether a legal claim is ultimately brought.