Publicity and image rights in Mexico. By Carlos Trujillo

Transcription

1 Publicity and image rights in Mexico By Carlos Trujillo In this modern times in which massive media makes the interchange of information so easy, be or not to be public in terms of privacy rights, turns out to be the question an individual or company should inquire into, before taking the decision to let other people know about them. In order to take this decision, an analysis about the legal mechanisms protecting privacy and image rights is of extreme importance. In this paper we will address some interesting legal aspects found in a regulatory level, in matters of the right of publicity and image use in Mexico. General Considerations Publicity, the right or ability to be or not to be public, is recognized in Article 16 of the Mexican Federal Constitution in terms of the interpretation of the fundamental right of privacy and as a limitation to the freedom of speech and expression right foreseen in Articles 6 and 7. In this context, anyone in Mexico has the ability to decide to be publicly known or not and the right to sue for indemnification against those people who have unlawfully affected privacy rights of others by communicating their image in public media. As a general rule, someone becomes a public figure voluntarily or incidentally. Voluntarily by participating in public affairs or by allowing others the use of images displaying a person s identity in public media, either motionless as in photographs or with motion integrated as in audiovisual forms. When someone voluntarily allows others to use his or her image to be publicly disclosed, this fact engenders the right to obtain a profit for the public disclosure of his or her identity. In first instance, the right of publicity is exercised directly by the concerned subject. Through a formal authorization or by inheritance, this right can be transferred to other persons. It may seem that publicity and image rights are exclusive to individuals, since these rights are mostly in line with the use of the name and likeness of a male or female. However, a company will also have publicity rights in terms of the entitlement to authorize or take commercial advantage through a public disclosure of its name and associated images of its premises, trademarks or products and to oppose to such disclosure and sue for indemnification when someone affects its reputation. Publicity and image rights under Civil Law. In exercising publicity rights, a person has the right for his or her image to be perceived by the public without elements affecting, diminishing or damaging his or her fame, reputation or honor. In this context and as a general rule, no one has the right to insult or defame others. In the past and until year 2007, harms to privacy rights in the form of insults or defamation were qualified as felonies and these conducts were punished under the Federal Criminal Code. 1

2 At a present date, insults and defamation are no longer qualified as felonies in the Federal Criminal Code. They are now taken by the Federal Civil Code as conducts creating a civil liability with the consequent obligation by the liable person to indemnify the affected party. The Federal Civil Code in its Article 1916 foresees the concept of moral damage as an injury or harm a person suffers in feelings, affections, beliefs, dignity, honor, reputation, private life, physical or public perception. The remedy for a moral damage consists of an economic indemnification the civil judge in charge of the case will determine by assessing the degree of damage caused to the injured party. Apart from the economic compensation, the affected party could request to the judge to order to the liable person to publish an extract of the final resolution declaring the existence of the moral damage. The publication must be done in the same media and extension as the one used by the liable party to cause the moral damage. Publicity and image rights vs. Freedom of speech and expression rights The freedom of speech and expression of ideas right is foreseen in Articles 6 and 7 of the Federal Constitution. By virtue of these constitutional rights, anyone in the Republic of Mexico is free to express ideas and opinions in writing or through any other media. This right, however, cannot be enforced if through its exercise moral principles, rights of third parties or the public order is affected or if through the expression a felony is committed. For the case of publicity right, the limitations to freedom of speech should be construed in the sense that no one is entitled to make public use of a name or image if through the ideas expression, the public perception of the concerned person is affected. Some guidelines to determine whether an expression of ideas is within permissible parameters are found in the Federal Civil Code, which establishes that there will not be a cause of moral damage: i) the truthful expression of information even in those cases in which the information is not correct, provided that the person performing the expression quotes the source where the information was obtained; ii) if the expression refers to literary, historic, scientific or professional critic and, iii) if the expression is issued in compliance to a duty and it is not intended to offend the person to whom it has been addressed. All the above poses very subjective issues since the assessment of the damage would vary, depending on the point of view of the party expressing the ideas and the one to whom the expression refers to. The final decision as if a moral damage through the ideas expression has taken place would be a civil judge to be ruling upon the case to be brought by the affected party, who should determine whether the expression of ideas was lawfully performed or if it was made with a deceit intention to affect the privacy or the public perception of the concerned person. 2

3 Relevant Local Law. The case of Mexico City. The case of Mexico City law regarding publicity and protection of image rights is relevant. In year 2006 the Law on Civil Liability for the Protection of Private Life, Honor and Self-Image (LCLP) entered into force in Mexico City. This law abolished the provisions about publicity, image protection and moral damage that were formerly included in the Local Civil and Criminal Codes. The LCLP introduces the concept of the moral patrimony as the intangible personality assets of a person in a wide sense. Its main purpose, pursuant to its Article 1 is to govern situations in which the freedom of speech and expression right enters into conflict with the moral patrimony of a person. Image is defined in the LCLP as the identifiable reproduction of the physical characteristics of a person in any possible material mean. Every person in Mexico City has the right upon his or her self-image and has the ability to authorize or not the fixation of his or her image and the public communication thereof in any available media. In this context, the law qualifies a conduct as illegal, when someone publicly communicates the image of a person without a proper authorization. The law also forbids capturing, taking, reproducing or publishing motionless or motion-integrated images of people in private events or moments. Exceptions to the image right foreseen by the LCLP take place when: i) the image belongs to a public figure, understanding under this concept when a person acquires notoriety for his or her professional activities or when there is a continuous communication of happenings of his or her private life; ii) the image belongs to a person having a public duty or, iii) the image belongs to a person that has participated in happenings, events or ceremonies of public interest or that occur in public places. It is interesting to mention that the LCLP allows the use of caricatures of people having public duties or public figures or of ordinary people when they incidentally appear in graphic information of public happenings. When someone s self-image is affected, the matter is to be settled by a Local Civil Judge. The remedies foreseen by the LCLP consist of a publication or disclosure in media about the final resolution declaring the existence of damage against the moral patrimony of the affected party and an economic indemnification to be determined by the judge in view of i) the degree of disclosure of the expression causing the damage, ii) personal conditions of the affected party and, iii) the special circumstances of the case. In any event the indemnification could not exceed the amount of three hundred and fifty days of minimum wage applicable in Mexico City (around US$1,500). The LCLP specifically establishes that it will be applicable not only to individuals but also to companies or organizations in those aspects compatible with their nature. Publicity right for a company As mentioned at the beginning of this paper, it could be construed that individuals are the only ones to hold publicity and image rights and the ability to enforce them. For the case of a moral damage foreseen in the Federal Civil Code, as referenced in former chapters, a company for sure does not have feelings, affections or a physical 3

4 perception in a strict sense. But it definitely has, as an association of people systematically organized, beliefs, dignity, honor, reputation, privacy rights and a public perception. The above leads us to affirm that companies are also entitled to hold publicity and in certain way image rights. The exercise of publicity and image rights for a company takes place when they allow its name or its perception as a legal entity through images displaying its trademarks, premises, products or the form in which services are rendered by it, to be publicly disclosed in any media either by performing advertising activities or not, and when they enforce rights arguing the existence of a moral damage when a public expression of ideas harms its goodwill or public perception. Concerning this subject, there are some relevant judicial precedents in which Federal Circuit Courts have ruled that companies have rights to claim moral damages when they suffer harms or damages in their reputation and goodwill, through a public expression that was unlawfully issued. The mentioned precedents do not constitute yet formal jurisprudence to be compulsory followed by other courts to settle similar matters. But they reflect a relevant court opinion to be taken into account to consider that provisions regarding moral damages are applicable to companies. Publicity and image rights in Intellectual Property Law In the Federal Copyright Law, publicity and image protection can be found in two fields: i) protection to actors or performing artists for their public performances and, ii) image right protection for people or models in photographic works. Actors and performing artists are granted by the law the so-called related rights which afford them with the right to be recognized with their names in their respective performances and providing them with the ability to: i) authorize or oppose to the public communication of his or her performances, ii) authorize or oppose to the fixation of their performances in a material support and further reproduction thereof and, iii) authorize or oppose to any alteration to a performance in a manner that affects his or her prestige or reputation. The mentioned rights are extinguished if an authorization to the fixation of the performance exists, provided that the titleholder of the resulting material support has fulfill the payments as agreed with the concerned actor or performing artist. For the cases of an artistic group, the mentioned rights are exercised by a common representative appointed among its members. If none of the members has been appointed as the common representative, it is presumed by the law that the group director holds the mentioned representation. Aside of the above capabilities, actors and performing artists have the right to perceive royalties for the public communication of their performances. This right can be exercised directly by the concerned individual or through a Collective Management Organization that has been empowered to represent an actor s or a performing artist s interests. 4

5 The rights of actors and performers last for seventy five years as of: i) the first performance; ii) the first fixation of the performance in a phonogram, if the performance can be recorded in such material support and, iii) the first broadcasting of the performance in any available media. Concerning image use, the Federal Copyright Law provides protection to individuals for the use of their portraits appearing in photographic works. As a general rule, an authorization from the concerned individual is required for the commercial use of his or her portrait in a photograph. In line with the above, a photographer requires the consent of individuals to publish or communicate their portraits. An exception to this rule is found in photographs of individuals that receive a payment from the photographer. In such cases, it is presumed that the photographed individuals have granted sufficient authorization to the photographer to publish their portraits. A photographer does not require the consent by individuals to reproduce their portraits when they form part of a multitude or when the photograph is taken in a public place and it has an informative or journalistic intention. This is in line with our first comments concerning the disclosure of an image when an individual incidentally participates in a public happening and there is a public communication of him or her in news and media. It is possible for an individual or model to revoke an authorization for the use of his or her portrait. In this case, the titleholder of the rights over the portrait will have to stop using the portrait but will have the right to obtain an indemnification by the photographed person for damages and loss of profits incurred with the portrait deletion. The rights by photographed individuals or models last for his or her entire life and fifty more years as of his or her death. The mentioned rights can be exercised directly by the concerned photographed person or by assignees or successors that acquired these rights through a contract or by inheritance. The absence of an authorization for the commercial use of the performance of an actor or performer and for the use of a portrait in a photographic work are punished through a fine and the destruction of the infringing materials as foreseen in the Federal Copyright Law. For the case of the unauthorized use of performances, this conduct could also be prosecuted in a criminal action since it can constitute a felony foreseen in the Federal Criminal Code. In both instances once there is a final decision declaring the existence of the illegal conduct or felony, this opens the possibility for the affected party to sue for damages through a civil proceeding. We will have some words on this issue in further paragraphs. When an actor or a model authorizes the use of his or her image for advertising a product or service, the Federal Copyright Law foresees that the applicable contract to be entered into would be a so-called publicity agreement. A publicity agreement has special rules applicable to payments and the periods of time in which the authorized person will have the right to use the performance or image of the concerned actor or model. In terms of Article 74 of the Federal Copyright Law, advertisements can be publicly communicated up to six months as its first publicly disclosure. Concluded this initial term, the holder of the authorization can continue using the advertisement for another two additional six-month terms, but the involved actor or model would be entitled to receive an economic compensation at least equal to the one originally received for the initial term. Once three six-month terms were concluded, the terms for the use of the advertisement will be subject to a new negotiation between the involved 5

6 actors or models and the person willing to obtain an authorization for the use of the materials for a new term. Regarding the industrial property field, the name, nickname, signature and portrait of an individual can create a mark pursuant to the provisions of the Industrial Property Law. Protection for marks having one of the mentioned elements or a combination thereof is available through its registration before the Mexican Institute of Industrial Property. The term of this protection is of ten years as of the filing date of the respective trademark application and can be renewed indefinitely, provided that the titleholder uses the mark and use thereof is not interrupted for more than three consecutive years. Through trademark usage, a person will become a public figure in exercise of his or her publicity right, every time the products or services covered thereto are advertised. The right to obtain trademark protection for a name, nickname, signature or likeness initially pertains to the concerned individual, who will be entitled to authorize others to use and register the mark or to refrain from taking these actions without a proper authorization. Conclusions 1. Publicity and image rights in Mexico are protected through different legal statutes. The constitutional basis of the laws governing these matters is found in the privacy right and freedom of speech and expression right foreseen in the Federal Constitution of Mexico. 2. Moral damage is defined in the Federal Civil Code as an injury or harm a person suffers in feelings, affections, beliefs, dignity, honor, reputation, private life, physical or public perception. Remedies for a moral damage consist of an economic indemnification to the affected party and the publication of the judicial resolution in the same form and with the same extension as the expression that caused the damage could have had. 3. The freedom of speech and expression right cannot be enforced when the resulting material has the purpose to harm others. This is a subjective matter and a competent civil judge will have a final decision to declare the existence of moral damages in view of the circumstances of a given case brought by the affected party. 4. Mexico City has a specific law protecting the private life, honor and self-image. This is one of the first laws in the country that splits publicity and image rights from civil and criminal codes. 5. Companies in Mexico are entitled to hold publicity and image rights and to exercise enforcement actions in connection with them. 6. In the intellectual property field, image protection is found in the Federal Copyright Law and in the Industrial Property Law. In the copyright field protection is afforded to artists and to individuals or models displaying their physical perception in motionless or motion integrated materials. Regarding industrial property rights, a name, nickname or likeness of a person can be protected as a mark by obtaining a trademark registration. 6