Monday, December 19 2022   \  Published by OMC Abogados.

Can I hand over the “right to my image”?

Can I hand over the “right to my image”?

In recent years, it has become widespread for famous athletes and artists to assign an asset, often described as their "image rights". These assignments often include a combination of rights, including intellectual property, privacy and other rights.

These groups of rights interact with each other in different ways; therefore, we will make a panoramic review of the so-called right of publicity (hereinafter, ROP), which has been frequently developed in American laws and courts, through a process where it has been used to protect that which, in the Peruvian legal system, would be protected through the right of image (derived from the right to privacy), copyright, trademark law or unfair competition.

The ROP can be understood as a measure to protect individuals against the unauthorized use, for commercial purposes, of their image and voice, as well as their likeness, name, identity, reputation and even certain distinctive elements such as signature, famous phrases, characteristic clothing or even certain gestures and manners.

This right is largely based on the law of unfair competition, in particular the doctrine of misappropriation of another's reputation or effort. This is essentially the same theory that is applied in trademark law.

However, unlike the right of image, the ROP covers not only the direct use of a person's image or voice, but also the use of representations that require intellectual mediation, such as portraits and imitations, among others. On the other hand, the ROP does not protect any type of use of the image of individuals, as is the case with the right to one's own image and voice, but, specifically, exploitation of a commercial nature.

In the case of Winter v. DC Comicsi, two musicians and artists, brothers John and Edgar Winter, sued DC Comics alleging that they had copied their identity by the inclusion in a comic book of characters called the Autumn Brothers, semi-human villains. The California Supreme Court found that the comics contained sufficient creative elements to make the characters more than mere literal representations and declared that they were protected by the First Amendmentii.

In Peru, it is worth mentioning an important precedent on the use of the representation of a celebrity in an audiovisual work. By Resolution 3251-2010/SC1-INDECOPIiii , the INDECOPI Court ruled on the unfair competition complaint filed by Andina de Radiodifusión S.A.C. (ATV) against Compañía Latinoamericana de Radiodifusión S.A. (Frecuencia Latina), for the commission of alleged acts of undue exploitation of the reputation of others and denigration, as a consequence of the broadcasting of the miniseries Magnolia Merino. The Court concluded that: "to sanction as unfair acts of denigration the content of a work of fiction, which is the product of the creation of its authors and has a marked critical purpose, as well as to curtail its public broadcasting through a means of expression, would substantially restrict the content of the fundamental right to freedom of expression".

The ownership of image rights can have tax implications and any related sales or licensing need to be carefully managed to ensure that they are effective from every point of view. The ability to structure and manage them is just one of the reasons why these rights are so popular with both established and emerging stars. For example, as sporting careers are clearly short, it is important for athletes to maximize their income during their careers in order to accumulate it for when they are no longer active.

In conclusion, image rights provide a mechanism to deal with cases of infringement by unauthorized third parties and commercial relationships, however, not every type of commercial exploitation is considered improper, as the laws protect artistic and cultural expressions, as well as opinions and ideas, in a fairly broad manner, regardless of whether they are commercially exploited.

It is also important to mention that the protection provided by freedom of expression is not absolute or blind, but may require the evaluation of the real existence of the protected expressive factor and eventually, the contrast with other rights. i Winter v. DC Comics, 30 Cal.4th 881 (Cal. 2003) ii The U.S. constitutional rule that guarantees freedom of expression iii File No. 202-2008/CCD.

Author: Vicente Compodonico – IP Lawyer

Law firm: OMC Abogados & Consultores

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