Monthly Archives: November 2016

With careful planning, high profile individuals (such as sportspeople and entertainers with valuable ‘Image Rights’) can structure their arrangements in ways that achieve important commercial goals like asset protection, and are also tax efficient.

‘Image Rights’ are an individual’s right to exploit their name, image and other identifiable characteristics (such as their likeness, name or signature) on merchandise or in the media.

Under Australian law, an individual does not have a proprietary interest in their name, image or likeness, and therefore cannot assign these rights to a third party. However, the Australian Taxation Office (ATO) has accepted that an individual can grant a licence to a third party for the use and exploitation of his/her Image Rights¹.

A common practice is for a person who has valuable Image Rights (Image Rights Individual) to set up a private company or a trust (Private Entity) and to grant a licence over their Image Rights to the Private Entity.

In turn, a third party that wishes to use the Image Rights (including, in the case of a sportsperson, the club or team they play for) will enter into an arrangement for the use of the Image Rights with the Private Entity. The fees paid by the third party for the use of the Image Rights are paid to the Private Entity and not to the Image Rights Individual directly.

The Fair Work Commission has dismissed a former employee’s unfair dismissal application¹, finding that the employer’s workplace culture was not to blame for the employee’s sexual harassment.

The employer (an unidentified airline) summarily dismissed the employee from his position as a Cabin Crew Supervisor following an investigation into multiple allegations of sexual harassment, including that the employee had:

• shown explicit images of a crew member to other crew members while in flight
• repeatedly made inappropriate and unwanted sexual comments and advances to a number of fellow crew members, including lewd observations about passengers.

The employee denied the allegations. However, on consideration of the evidence (including evidence given by eight cabin crew members) the Commission found that the alleged conduct did occur and that it was serious misconduct. Therefore, the employer had a valid reason for the dismissal.