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Image and personality rights


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Regional Conference on Intellectual Property (IP) in the Digital Economy for Small and Medium-sized Enterprises (SMEs), Bucharest, April 18 and 19, 2016

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Image and personality rights

  1. 1. I M A G E A N D P E R S O N A L I T Y R I G H T S D R A N D R E S G U A D A M U Z , U N I V E R S I T Y O F S U S S E X
  2. 2. A P O L O G I E S
  3. 3. W H AT A R E I M A G E R I G H T S ? • This is not a harmonised area of law, very specific to jurisdiction. • Image rights (personality rights) is an umbrella term to define protection of a person’s personality, including image, likeness, reputation, etc.
  4. 4. I M A G E R I G H T S • Right of image • Right of publicity • Right of personality • Passing off • Unfair competition • Privacy rights
  5. 5. L E G A L D E F I N I T I O N S ( C A N A D A ) • Art 3 Quebec Civil Code: “Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy. These rights are inalienable.”
  6. 6. PA S S I N G - O F F • Tort in the UK that protects goodwill. • The is that principle that “nobody has any right to represent his goods as the goods of somebody else” Reddaway v Banham. • 3 elements: 
 1) goodwill or reputation attached to the goods or services; 
 2) a misrepresentation by the defendant to the public; 
 3) and, damage or the likelihood of damage.
  7. 7. R I H A N N A V T O P S H O P ( 2 0 1 5 ) • Topshop UK sold t-shirt with Rihanna’s picture. She sued for passing-off. • “…the law of passing off is not designed to protect a person against fair competition.” • “Many of her fans regard her endorsement as important for she is their style icon, and they would buy the t-shirt thinking that she had approved and authorised it.”
  8. 8. R I G H T O F P E R S O N A L I T Y ( G E R M A N Y ) • Probably the strongest level of protection in Europe. • Art 12 Civil Code: right to one’s name • Article 22 of the Artistic Authors Rights Act: right of image. • Article 1 of the Unfair Competition Act 1909: protection of commercial use of image. • Commercial use of image (Marlene Dietrich case, 1999).
  9. 9. T E C H N O V I K I N G • During the 2000 Berlin Love Parade an Internet star is born. • Matthias Fritsch uploaded video to Internet, but it didn’t gain traction until 2006. • Exploded as an Internet meme that year. • Fritsch made €10k EUR from views and merchandise.
  10. 10. B E R L I N R E G I O N A L C O U R T R U L I N G ( 2 0 1 3 ) • Technoviking sues in 2012 for breach of privacy and breach of image rights. • Court failed to consider privacy, but agreed on image right violation. • Injunction forces Fritsch to digitally remove Technoviking from video. •
  11. 11. O T H E R C I V I L A C T I O N S • Droit à l’image (France) • ‘portrait rights’ in Dutch copyright law. • Commercial use of image • ‘Cashable Popularity’ in Holland.
  12. 12. R I G H T O F P U B L I C I T Y ( U S A ) • The Right of Publicity can be defined as the right to control the commercial use of one’s identity. These usually consist of “name, image and likeness.” • This is a state law issue, so the law changes from state to state. • Has little to do with IP law as such, although there may be some intersection with copyright, particularly regarding fixation of images.
  13. 13. S I N AT R A V. G O O D Y E A R T I R E ( 1 9 7 0 ) • Passing-off case against Goodyear for use of a look-alike with song similar to “These boots are made for walking”. • No competition between Sinatra and defendants, she made records, they made tires.
  14. 14. Z A C C H I N I V. S C R I P P S - H O WA R D B R O A D C A S T I N G ( 1 9 7 7 ) • SCOTUS decision where Hugo Zacchini, the so-called “human cannonball”, had his performance recorded and used without his permission by a news crew. • The Court recognised Zacchini’s Right of Publicity and it existed to provide “an economic incentive for him to make the investment required to produce a performance of interest to the public.” • Other US cases: Midler v. Ford Motor (1989) and Waits v. Frito-Lay (1992).
  15. 15. K I R B Y V S E G A ( 2 0 0 6 ) • Keirin Kirby (of Dee-Lite fame) sued SEGA America for the use of a character that looks like her in Japanese game Space Channel 5. • Use was considered transformative and also freedom of speech.
  16. 16. N O R I E G A V A C T I V I S I O N ( 2 0 1 5 ) • General Manuel Antonio Noriega was depicted in several missions in Call of Duty: Black Ops II. • He sued for breach of his right of publicity. • Court sided with game makers, considered it as speech protected by 1st amendment. • Public historical figures can be depicted in fiction.
  17. 17. L A S T O F U S - E L L E N PA I G E
  18. 18. L O H A N V R O C K S TA R ( O N G O I N G )
  19. 19. F U R T H E R R E A D I N G • Lee N et all (eds), “Intellectual Property, Unfair Competition and Publicity”, Edward Elgar (2014). • Coors C, “Headwind from Europe: The New Position of the German Courts on Personality Rights after the Judgment of the European Court of Human Rights” 11 German Law Journal 527 (2010). • Klink J, “50 Years of Publicity Rights in the United States and the never-ending Hassle with Intellectual Property and Personality Rights in Europe”, 4 Intellectual Property Quarterly 363-387 (2003).
  20. 20. @ T E C H N O L L A M A