12 Dec
2020

Why Mexico needs clearer publicity rights

Uhthoff, Gómez Vega & Uhthoff - Mexico

With image rights protected mainly by the Federal Copyright Law, the overlap between an individual’s right to control use of their image and the automatic copyright established on behalf of an author can lead to courtroom conflicts.

Image and publicity rights are designed to protect the images of ordinary people and those in the public eye. The term ‘image’ comes from the latin imagines, meaning figure, representation, similarity and appearance of a thing. What is more, Elvia Lucia Flores Ávalos points out in Right to the image and civil responsibility that ‘personal image’ refers to an individual’s physical appearance, which can be captured in drawing, painting, sculpture, photography or video. On that basis, an image right is a right through which a person’s image is protected in order to prevent third parties from capturing or disseminating it without due authorisation.

In Mexico, images are protected through various legal provisions. In the judicial appeal Amparo (48/2015), the Second Chamber of the Supreme Court of Justice determined that the right to one´s own image is a human right and thus capable of being violated. Under Article 28 of the Constitution, in correlation with the Federal Copyright Law, image rights are a constitutive element of the personal rights belonging to a human being and are beyond the reach of third parties. Therefore, an individual has the right to freely decide when and where to use and disseminate their own image.

Many agree that the right to one's own image is a subjective, inalienable, non-seizable, non-transferable and highly personal right. However, rights holders may negotiate a contract for the use of their image.

Moreover, the Civil Liability Law for the Protection of the Right to Private Life, Honour and Own Image in the Federal District permits the publishing of images without the consent of the person portrayed if one of the following requirements is met:

  • The individual is a public figure or public official.
  • The image is a caricature of a person and does not have a pecuniary purpose.
  • The image is an accessory to information about a public event.
  • Where the individual is not a public figure or public official, the image is reproduced in relation to facts or events of public interest.
  • Publication of the image has been authorised by the competent authority in accordance with the law.
  • A public, historical, scientific or cultural interest predominates publication.

If none of these conditions apply, publication will constitute a violation of the right to one’s own image, which could lead to administrative and civil actions.

The right to a personal image must not be confused with the right of publicity, either, as the former refers to any human being, while the latter is the right to control the commercial exploitation of the name, pseudonym, voice, signature or image of a celebrity.

Some countries have attempted to protect publicity rights through trademark registration; however, these rights have arguably different natures. Registering a trademark grants the owner the exclusive right to prevent third parties from marketing identical or similar products under the same or a similar brand where there is a likelihood of confusion, while the right of publicity refers to the right to use the image of a celebrity.

As for copyrights, the Federal Copyright Law specifically addresses image rights in order to distinguish between the scope of rights belonging to the author of a copyrighted work (eg, a photograph, a picture, a song or a drawing) and those of the owner of an image.

Therefore, Article 5 of the Federal Copyright Law establishes that works are protected through copyright from the moment they are fixed on a material support. Consequently, copyright protection does not require the fulfilment of any formalities – being the author of the work is sufficient to establish the right to determine whether to make it accessible and in what way.

As a result, when the image of a person is captured by a third party, the author’s rights to the work are automatically established. This creates a conflict between copyright and the right to the image of the person depicted.

For these reasons, celebrities whose images have been captured through photographs do not own the copyrights of those works. One example of this is a case involving the artist Jennifer López, who was sued by a member of the paparazzi for posting one of his photographs on her Instagram profile. The photographer claimed that copyright in the image belonged exclusively to him, and although López was the one portrayed, she had no right to use the photograph.

Although the Federal Copyright Law refers to the right to one’s own image, image rights are not copyrights. Therefore, the law exceeds its initial purposes and should not fully regulate these rights. To do so creates the risk of generating contradictory laws that substantively regulate image rights – as has already begun to happen.

Comment

Despite the will of some legislators to protect the images of people, including celebrities, image and publicity rights remain unrecognised in many countries. Although there is talk of a right to privacy, which is inherent to all people, establishing a publicity right has not been of fundamental interest.

That said, there is no dispute that these are personal rights, which can form the subject of a contract. For this reason, Mexico and many other countries have tried to frame image and publicity rights within the scope of copyright and even trademark legislation. The authorities need to recognise the importance of such protection and develop common rules to protect the images of individuals from commercial exploitation.

Marina Espitia

Associate

[email protected]

Marina Espitia obtained a law degree from the National Autonomous University of Mexico in Mexico City, specialising in IP law at the Institute of Intellectual Property and Competition Law. With more than 20 years' experience, she has worked in various positions at the Mexican Institute of Industrial Property. Today Ms Espitia is an important member of the Uhthoff, Gómez Vega & Uhthoff litigation team, serving as a lawyer for domestic and foreign companies alike. She has also participated in various WIPO seminars relating to IP issues.