Celebrity Endorsement – Navigating the Minefield

Celebrity Endorsement – Navigating the Minefield

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Celebrity Images, Brand Endorsement and How Australian Law Really Works

Using a recognisable face can feel like the fastest way to build credibility.

A familiar image creates instant trust, emotional connection and cultural relevance. For small and medium businesses competing for attention, that kind of shortcut can be tempting. But Australian law takes a very different view when it comes to using people’s images to sell products or services.

The well-known dispute between Rihanna and Topshop is a useful way to understand why. Although the case was decided overseas, the legal principles behind it closely mirror how Australian courts approach endorsement, reputation and misleading conduct.

What looks like flattery or inspiration from a branding perspective can quickly become a legal problem if consumers are likely to draw the wrong conclusion.

Why endorsement is a legal issue, not just a branding one

At the heart of endorsement disputes is a simple but powerful idea: consumers make assumptions quickly. When people see a recognisable face on a product, they naturally infer approval, collaboration or commercial association.

Australian law is less interested in what a business intended and far more concerned with what an ordinary consumer would think. If branding or marketing creates the impression that a person is associated with a product when they are not, legal risk arises regardless of good intentions.

This is why endorsement cases often catch business owners by surprise. There may be no written claim of endorsement, no logo use and no explicit statement. Yet the overall impression can still mislead.

The role of Australian Consumer Law

In Australia, the most common legal pathway for image misuse disputes is the Australian Consumer Law. The law prohibits conduct that is misleading or deceptive, or likely to mislead or deceive.

Using someone’s image in a way that suggests endorsement can fall squarely within this prohibition. If consumers believe a person has approved, sponsored or collaborated with a brand when that is not true, the law may be breached.

Importantly, a business does not need to intend to mislead. Australian courts repeatedly emphasise that intention is irrelevant. What matters is the effect of the conduct on consumers.

For SMEs, this is particularly important. Even small-scale campaigns, social media posts or short-term promotions can attract scrutiny if they create a false impression of association.

Passing off and reputation protection in Australia

Alongside consumer law, Australian common law protects reputation through the doctrine of passing off. Passing off occurs where a business misrepresents a connection with another person in a way that damages that person’s goodwill.

Celebrities are obvious examples, but the law does not stop there. Influencers, public figures and even individuals who have gained recognition in a particular field can rely on passing off if their reputation is exploited without consent.

Australian courts look closely at context. They consider how well known the person is, who the target audience is, how the image is presented and whether consumers are likely to believe there is a commercial relationship. In industries like fashion, beauty, fitness and lifestyle, these assumptions can form very quickly.

Why copyright permission is not enough

One of the most common mistakes businesses make is assuming that copyright permission solves everything. A business may legitimately license an image from a photographer or designer and believe that is the end of the story.

In reality, copyright law and endorsement law address different problems. A copyright licence allows the use of the image as a creative work. It does not grant permission to commercially exploit the identity of the person depicted.

In Australia, these are separate issues. You can have full copyright permission and still face legal action if the use of the image implies endorsement without consent. This distinction is often poorly understood outside legal circles, but it is critical for businesses using images in marketing.

Consent and model releases in practice

This is where written consent becomes essential. A properly drafted model release clarifies how a person’s image can be used, where it can appear, for how long and for what purpose.

Without clear consent, businesses leave themselves exposed. Disputes often arise years later when a campaign resurfaces online, is reused for a new purpose or reaches a wider audience than originally intended.

In Australia, model releases are not just best practice. In many commercial contexts, they are the safest way to reduce endorsement risk and avoid arguments about implied association.

What about non-celebrities?

Australian law does not limit these protections to famous people. Ordinary individuals can also object to the misuse of their image if it implies endorsement or commercial association.

This is especially relevant in the age of social media, where people can gain recognition quickly. Someone who becomes known through sport, activism, viral content or professional achievement may have a reputation worth protecting.

From a business perspective, this means the same caution should apply whether the person is globally famous or locally recognised.

Privacy: When Flattery Becomes an Invasion

Not every image-use dispute is about fame or endorsement. In Australia, privacy can also come into play — particularly when the person whose image is used is not a celebrity.

While Australia does not yet have a single, standalone statutory tort of privacy, courts have increasingly recognised that serious invasions of privacy may attract legal consequences. This is especially relevant where a person’s image is used in a way that is unexpected, intrusive or unfair, or where it causes embarrassment, distress or a loss of personal dignity.

For ordinary people, the harm is often not commercial. It is about loss of control. Someone may never have agreed to appear in advertising, on clothing, or across digital platforms. When their image is taken out of context and used to promote a product or brand, the impact can be deeply personal — even if the business had no intention to cause harm.

In these situations, privacy concerns often overlap with other legal issues such as misleading conduct, breach of confidence or misuse of personal information. Australian law increasingly looks at whether the use of an image is reasonable in all the circumstances, particularly where the person has no public profile and no expectation of commercial exposure.

For businesses, the message is clear. The absence of celebrity status does not equal the absence of legal risk. If a reasonable person would be surprised, uncomfortable or distressed to see their image used in your marketing, that reaction alone is a strong signal to stop and seek consent before proceeding.

Lookalikes, illustrations and creative workarounds

Some businesses try to sidestep endorsement issues by using lookalikes, illustrations or heavily edited images. Australian courts are generally unimpressed by these tactics if the person is still recognisable.

The legal test looks at overall impression, not technical differences. If consumers still think of the person and assume a connection, liability can arise. Disclaimers rarely cure the problem, particularly where the branding does the heavy lifting.

Creativity does not excuse confusion.

Why reputation damage often matters more than legal risk

Even where a business believes it has legal arguments, the reputational fallout can be severe. Endorsement disputes attract attention. Court cases are public. Headlines spread quickly and rarely tell the business’s side of the story.

For SMEs, this kind of publicity can be devastating. Loss of trust, backlash on social media and strained relationships with partners can far outweigh any short-term commercial benefit gained from the campaign.

Australian regulators and courts increasingly emphasise transparency and consumer trust, making this area of law more important than ever.

How Australian SMEs should approach image use

The safest approach is preventative. Businesses should think carefully before launching any campaign that relies on recognisable people, faces or personas.

Asking one simple question can be helpful: would an ordinary customer reasonably think this person is associated with my brand? If the answer could be yes, consent should be obtained and documented before proceeding.

Getting advice early is far less costly than trying to fix a problem after launch.

Final thoughts

Celebrity and influencer culture makes endorsement feel normal and accessible. But the law has not relaxed to match that pace.

Australian law continues to protect reputation, consumer perception and fairness in the marketplace. Businesses that understand this can still build powerful brands — but they do so with clarity, consent and control.

Flattery may feel harmless. In legal terms, it rarely is.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.