Publicity and image rights
The image and publicity rights are figures whose purpose is to regulate the image of people, be they ordinary people or public people.
The Dictionary of the Royal Spanish Academy stablishes that the word image comes from the latin imago, imaginis which means figure, representation, similarity and appearance of a thing.
The author Elvia Lucia Flores Ávalos points out in her book name “Right to the image and civil responsibility” that the personal image is our physical appearance, which can be captured in drawing, painting, sculpture, photography and /or video.
On the basis of the foregoing, we can determine that the image right is a right through which the people´s image is protected in order to prevent that a third party from capturing or disseminating it without due authorization.
In Mexico, the legal protection of the image is protected in various legal provisions. In this sense, the Second Chamber of the Supreme Court of Justice of the Nation determined in the sentence issued in the judicial appeal “amparo” no. 48/2015 that the right to one´s own image is a human right liable to be violated, which is protected in article 28 of the Political Constitution of the United Mexican States (CPEUM) in correlation with the Federal Copyright Law (LFDA), establishing that said right is constitutive of very personal rights belonging to the human being, out of the interference of third parties, in which the individual has the right to freely decide the use and dissemination of his own image.
Several authors agree that the right to one’s own image is a subjective, inalienable, non-seizable, non-transferable and highly personal right, however the owner of said right may negotiate authorization contracts for the use of their image.
In this sense, the Civil Liability Law for the Protection of the Right to Private Life, Honor and Own Image in the Federal District provides the possibility of publishing images without the consent of the person portrayed, as long as certain assumptions provided in the Law are updated, otherwise we would be facing a violation of the right of the own image, which could lead to administrative and civil actions. Said assumptions are, i) when they are public figures or public officials; ii) in the case of a caricature of a person, which must not have a pecuniary purpose; iii) when the image is accessory to information of public events; iv) when the image is of a person who is not a public figure or public official and the reproduction is made in relation to facts or events of public interest; v) when the publication of the image is authorized by the competent authority in accordance with the law; vi) when a public, historical, scientific or cultural interest predominates.
Nevertheless, we must not confuse the right to personal image with the right of publicity, since the first refers to any human being, while the second is the right to control the commercial exploitation of the name, pseudonym, voice, signature or image of celebrities (singers, actors, artists, writers, etc.).
Some countries have made an attempt to protect the publicity right under the figure of registered trademarks; however, from my point of view both figures have different nature. Let us remember that the brand grants its owner the exclusive right to prevent third parties from marketing identical or similar products under the same or a similar brand in a likelihood of confusion, while the right of publicity refers to the right of the image of a celebrity.
As for copyrights, our Federal Copyright Law contains provisions regarding the image right, and the reason is because it is necessary to delimit the scope of exercise of rights belonging to the author of the work (photographic, pictorial, audiovisual, drawing, etc.) and the owner of the image.
Therefore, the article 5 of the LFDA establishes that works are protected from the moment they have been fixed on a material support, consequently, the recognition of copyright is not subordinate to fulfillment of any formality, being the authors of said work who have the right to determine if they make said work accessible and in what way.
In this sense, when the image of a person is captured by a third person, the rights of the author of such work are automatically arisen, this has brought a conflict between copyright and the right to the image of the person who was captured.
Due to the above points, the celebrities whose image has been captured through a photograph do not own the copyrights of such work. An example of this is the case in which the artist Jennifer López is involved, who was sued by a paparazzi for having used one of his photographs on her Instagram profile, in which appear JLO and her couple appear. The attorneys of the photograph assured that the copyrights of that image are exclusive of the photographer, and although she is the one portrayed, she has no right to use it.
To Eduardo de la Parra, although the LFDA refers to the right of one´s own image, it exceeds its initial purposes, since said law should not fully regulate this right, since we are not talking about a copyright, alongside with the risk of generating various laws that substantively regulate said right, as has happened in Mexico.
However, this problem is not exclusive to our country, since in the USA the publicity right is protected by common law and such protection may vary from one state to another. Only some states have recognized this right, while others protect it as part of the right of privacy.
In India does not exist any law that grants protection to the personality rights, and although the trademark law does not mention the publicity right, the definition of “trademark” includes within its scope the names and signatures, thus the celebrities in that country have resorted to registering their names and signatures as a trademark to avoid any misuse.
On the other hand, in most European Union countries some type of privacy right or personality rights are recognized, and although this right also varies from one country to another, there is a set of common rules whose purpose is to protect the personal rights and fundamental freedoms of people and in particularly their right of privacy.
In the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and the free movement of such data, and repealing Directive 95/46 /EC (General Data Protection Regulation) , is stablished that personal data is understood as “any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;”
From the above mentioned, it could be assumed that this Regulation could be applied to some cases based on the privacy right, since a celebrity or an individual could make some type of claim if he discovers that this name, image or other characteristics have been collected and used for commercial purposes.
We can assume that despite the will of some legislators to protect the image of people and celebrities, the image and publicity right are still not recognized as such in many countries, although there is talk of a right of privacy which is inherent to all people, the publicity right has not yet been a fundamental interest; however, all agree that they are very personal rights that can be a subject of an image use authorization contract.
For this reason, each country tries to frame them in other figures of copyright and even trademarks. Therefore, it is necessary for countries to recognize the importance of the image of people and celebrities and develop common rules to protect their image from commercial exploitation.