Lara Bingle sues men's magazine - protecting personality rights in Australia

By Nicholas Tyacke and Tara Walker.

Key Points:
For Ms Bingle to succeed, she must establish that she had commercial interests in promoting the image and likeness of herself, through commercial activities such as paid endorsements, advertising or the like, and that she will suffer commercial losses.

Appearing on the cover of a recent issue of Zoo magazine is a revealing photo of Lara Bingle (the face of Tourism Australia and star of Channel Nine's "Torvill and Dean's Dancing on Ice") in a bikini taken from a promotional shoot filmed in August last year. It is alleged that Zoo initially asked Bingle for a shoot of its own, but that she flatly refused. In spite of her refusal, Zoo obtained some promotional photos taken for the purposes of promoting the photographer's company, Roger Management, and Bingle's modelling career, and used one of them for its cover adjacent to a prominent statement "World Exclusive! Bloody Hell! TV ad girl Lara Bingle's first-ever men's mag shoot!" There was an article in this publication which included more photos of a bikini-clad Bingle, including a speech bubble caption featuring the words "I'll make you come".

Bingle's lawyers claim that the use of the Bingle photo and her name on the cover to illustrate a feature article about her without her or the photographer's authorisation constitutes a breach of copyright.

They also claim that Zoo engaged in misleading and deceptive conduct under the Trade Practices Act by representing that Bingle had posed topless for the magazine. An action for breach of sections 52 and 53 of the Trade Practices Act (and equivalent provisions in the State and Territory Fair Trading Acts) is one of the primary means of preventing unauthorised commercial exploitation of a person's image in Australia. It provides a right of legal recourse where, in the course of trade or commerce, a person engages in misleading or deceptive conduct or makes expressly or implicitly, false representations about someone.

It is important to note that, for Ms Bingle to bring such an action, she will need to establish that she had commercial interests in promoting the image and likeness of herself, through commercial activities such as paid endorsements, advertising or the like, and that she will suffer commercial losses (not just injuries to her feelings or moral outrage). Provided that she can establish that she has a significant reputation in Australia, this should not be difficult in her case. However, there have been a number of cases where lesser known people, such as an amateur sportsman, could not bring such an action, because they are not well enough known for such a deception to occur, or to result in a financial loss.

Finally, it is claimed that Zoo defamed Bingle by implying

• that she consented to pose for the shoot;
• that she was the sort of model who would invite readers to achieve sexual pleasure from her photographs; and
• that she was prepared to demean herself for money by being photographed for a men's magazine.

Bingle's claim is the latest in a series of similar cases in both Australia and the United States. In March this year, Hollywood starlet Jessica Alba brought a comparable claim in the United States against Playboy magazine. Alba claimed that Playboy's use of her name and image on its cover to illustrate a story about "the 25 sexiest celebrities" without her permission constituted an unauthorised commercial exploitation of her name and persona, in violation of her US common law rights of publicity. Further, Alba's lawyers alleged a host of other matters against Playboy and its agents, including copyright infringement, unfair business practices, unfair competition, false advertising and intentional infliction of emotional distress. This claim was settled out of court by monetary compensation.

Other Australian celebrities in recent years have brought claims for misrepresenting commercial connections between their names and images and companies' products and services. Kieran Perkins successfully obtained an injunction against Telstra using his name and image in an advertising supplement in Brisbane's Courier Mail during the Optus/Telstra subscription ballot, on the basis that the ordinary reader would have gained an impression that Perkins gave Telstra his consent to what was published and supported Telstra in the forthcoming pre-selection process. Other celebrities such as performer Olivia Newton-John, television journalist Sue Smith and swimmer Tracy Wiggins have, however, been unsuccessful in preventing the use of their names and likenesses of their images to advertise products, on the basis that they failed to establish that the ordinary reader would be misled into believing that a commercial connection existed.