The Right to Economic Protection of One's Image in Latin America
| Autor | Javier Berdaguer Mosca |
| Páginas | 37-68 |
LATIN AMERICAN LEGAL STUDIES Volume 5 (2019), pp. 199-228
THE RIGHT TO ECONOMIC PROTECTION OF ONE’S
IMAGE IN LATIN AMERICA
Javier Berdaguer Mosca*
Abstract
This study is aimed at describing the three main comparative
law models for explaining the economic protection of the right
to one’s image (intellectual property right, personality rights and
a hybrid right consisting of personal and economic attributes).
It will then analyze the main elements of the regulations on the
right to one’s image in Latin America, specially focusing on acts
of commercial exploitation, and it will nally try to connect the
Latin American reality with the existing theoretical models.
Keywords: the right to one’s image, commercial exploitation of personality rights;
comparative law.
I. RAISING THE MATTER
People generally decide whether or not to let another person use their
recognizable physical appearance, usually known as the right to one’s image.1
First, this right has a personal or moral attribute, which is sort of a legal “retaining
wall” against improper intromissions within the individual sphere, usually leading
to the undesired and unjustied public capturing and/or diffusion of another
person’s image. This protection is based on the need to recognize people’s right to
self-determine how they want to reveal themselves to society;2 an idea related to the
protection of human dignity. Any act aimed at using another person’s attributes as
an object subjugates the person’s personality,3 unless the use thereof is consented by
the person at issue or is permitted by law.4
*1 Universidad de la República Oriental del Uruguay, Montevideo, Uruguay; Universidad Católica
Dámaso Antonio Larrañaga, Montevideo, Uruguay (jberdaguer@g uyer.com.uy). Article
received on June 17, 2019, and accepted for publication on August 6, 2019. Translated by Fluent
Traducciones.
1 Although we will not analyze this topic in detail, it is worth pointing out that the scope of protection
of the right to self-image currently goes beyond physical appearance, as it includes any external
expressions of a natural person’s identity, such as voice, name and other attributes identifying the
person publicly or in a certain group:
caBanellas de las cuevas
(2014), p. 168.
2
WhitMan
(2004), pp. 1160 et seq.
resta
(2011), pp. 49-50;
resta
(2014), pp. 21-23;
3
Zavala
(2011), p. 4.
4 All jurisdictions agree that, in some cases, using another person’s image without the portrayed
Javier Berdaguer Mosca
200
LATIN AMERICAN LEGAL STUDIES Volume 5 (2019)
Nonetheless, we cannot thoroughly and fully analyze the right to one’s image
without bearing in mind that people often commercially exploit others’ image. This
phenomenon is certainly not new, since the rst decision on the right to one’s image
concerned its use for advertisement purposes.5 Moreover, by the late 19th century, a
person’s reputation (and the signs by means of which everyone identies that person,
such as name or image) is attractive for commercial exploitation.6 In some cases, the
commercial exploitation of a person’s image is consented by the latter, for exorbitant
amounts of money. In this way, image not only took on a moral but an economic
aspect, thus becoming a tradable good.7 Hence, this aspect also includes those acts
aimed at taking an economic advantage of a person’s image, meaning that, prima
facie, only the person whose image is being used shall be entitled to the prots from
this activity. Image can become part of legally relevant acts, since the holder of the
right to one’s image can prot from the market value from the exploitation of his or
her image.8 The right to one’s image is a tool to assign to its holder the prots from
the exploitation of image. The right holder monopolizes the commercial exploitation
of his or her image; similar to the relationship between property rights and the prots
of the thing at issue.9
Most legal systems provide some type of protection to the economic dimension
of the right to one’s image. In particular, case law often protects the person whose
image has been used against third party acts usurping the pecuniary value of a
person’s image without his or her permission, condemning those intending to “get
a free ribbing” with business purposes. The protection of this pecuniary nature is
especially evident in those cases where courts grant the claimant a compensation
based on the price that the defendant would have reasonably paid if it had requested
the relevant authorization (hypothetical royalty or hypothetical license criterion).10
However, when delving into this general consensus, we get at least three
different models on the scope of this protection of the economic dimension of the
right to one’s image. These models involve similar and common ideas and beliefs
that steer regulations in a particular direction.11 Comparative analysis is very useful
person’s consent is legal, provided that such specic use is not abusive (within certain limits and
in a manner that is not unnecessarily harmful), especially in those cases where it is clear that the
defendant used this image for public interests.
5 Rachel Case (Civil Court of la Seine, 1858).
vendrell
(2014), p. 50-51;
Beverley
et al. (2005), p. 1
and 147; in the United States:
rothMan
(2018), p. 11.
6
Beverley
et al. (2005), p. 1
7
resta
(2005), p. 238;
resta
(2006), p. 636 and 637;
loiseau
(1997), p. 328;
Priens
(2006). On
commodication:
resta
(2011), pp. 41 et seq.
8
vendrell
(2014), pp. 202, 203.
9
resta
(2005), p. 163.
10 Under this mechanism, the offender is bound to restore the relevant value:
Beverley
et al. (2005), p.
69);
resta
(2005), pp. 157 et seq.
11 For the development of these protection models, see
: resta
(2005), pp. 271-276;
Beverley
et al.
(2005), pp. 212-214;
resta
(2006), pp. 635 et seq.;
Black
(2011), pp. 12-27;
resta
(2011), pp. 48-51
and 58-65;
vendrell
(2014), pp. 461-465;
resta
(2014), pp. 23-26.
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