Our world is becoming more dominated by the millenial and centennial generations each day. They want everything at their fingertips, publish everything on social media and want to have a lifestyle like the rich and famous. It is becoming more important than ever for companies to rely upon the images of famous people to advertise their products and sell the idea that “if famous people consume this product, so should I.”
On the other hand, a large part of these famous people’s incomes (actors, singers, artists, or athletes) is derived from sources other than those that made them famous. They earn money by having their image used in advertisements for a brand, product or service. The right to make use of and control one’s image is what we refer to when speaking about the right of publicity.
There are no international agreements regarding the right of publicity offering minimum parameters of protection, as there are for copyrights (Berne Convention) or for trademarks (Paris Convention). Therefore, protection granted under the right of publicity varies from country to country, and even from state to state in the United States.
Although the right of publicity in the United States is typically governed by state rather than federal law, one can find some tendencies in each statute, or even in the common law verdicts that correspond with jurisprudential developments in other countries like Colombia.
But the right of publicity has some limitations that must be recognized and considered. For instance, the right of publicity is often at odds with the right of freedom of speech and freedom of information. And the use of someone’s image and likeness often requires prior authorization. As a result, each case needs to be studied individually to determine when the name, image and/or likeness of a person is protected and can be used.
Right of Publicity: An Autonomous Right
One of the first cases dealing with the right of publicity in the United States was Haelan Laboratories v. Topps Chewing Gum (202 F.2d 866), decided by the United States Court of Appeals for the Second Circuit. In this case, the court distinguished the right of publicity from the right of privacy, recognizing that the right of publicity exists separate and apart from the right of privacy.
In Colombia, the right of publicity becomes a concern due to the use of a person’s image without authorization, who alleged that such use violated the person’s right of privacy. The Colombian Constitutional Court recognized, in Sentence T-090 from 1996, that the right of publicity can be violated, independently of the right of privacy and the right of honor or reputation.
Subsequently, Colombian courts reiterated that the right of publicity (better known in Colombia as the right of image) is a fundamental and independent right given to each individual to use and control their own image. This means not only their appearance, but also physical characteristics that define them, including their likeness and the concept of “social image” - the way that people in their social circles identify them (Sentence T-050 from 2016).
As a result, when a company in Colombia wants to use someone’s image for advertising purposes, they need to request authorization to use the image from the person in question to avoid violating their right of publicity.
Licensing the Right of Publicity
Recognizing that we need to seek authorization from the person whose image or likeness we wish to use in advertising or any other commercial endeavor, the next question is from whom should we request this authorization or license? Also, how should such authorization be requested?
To answer the first question, we turn to the case of Fraley v. Facebook (Case No. CV 11-01726 RS), decided by the United States District Court for the Northern District of California. In that case it was determined that the right of publicity is not just a right granted to famous people; it is also a right that applies to ordinary citizens. In Colombia, the courts have reached the same conclusion (Sentence T-439 from 2009). Moreover, Colombia has extended the right of publicity not just to private citizens, but also a right enjoyed by legal entities.
As to how to request authorization, the answer is not so straightforward. States in the United States have regulated the right of publicity in distinct ways, either through statutory regulations or common law pronouncements. The same distinctions can be found from country to country. In the case of Colombia, the licensing requirements for image rights have been developed over the course of many years, largely by the Colombian Constitutional Court.
First, the right of publicity is non-transferrable, since it is a fundamental human right that cannot be waived or given up by any individual.
Second, the right of publicity, originally developed as a fundamental individual right by the courts, has been codified, at least in part, through Law 1581, which was passed in2012. This statute applies treats a persons image and likeness as personal information subject to data protection obligations. Thus, licenses and authorizations for a person’s image and likeness must be obtained prior to use, and the consent should be in writing and clearly who can use or publish the person’s image and for what purpose.
Finally, the case law has established the following requirements as a prerequisite to the use of the person’s image and likeness:
Limits and Exceptions to the Right of Publicity
The right of publicity is not an absolute right and has limitations, especially when it collides with other rights of similar importance.
In the United States, there are a variety of cases that set limits on the right of publicity. For example, in Hoffman v. Capital Cities/ABC, Inc., the United States Court of Appeals for the Ninth Circuit stated that the First Amendment allows magazines to use celebrities’ names and likenesses in feature articles without prior consent. In Colombia, the Constitutional Court has also established limits and exceptions to protect the freedoms of speech, information and artistic expression.
Generally, limits on the right of publicity in Colombia arise from the “prohibition of the abuse of rights, the preservation of legal order, the demands of sociability, and, in certain cases, the fulfillment of a public interest for the greater good.” Thus, as in the United States, not every unauthorized use of a name, image or likeness of a person constitutes a violation of the right of publicity in Colombia. In some instances, other rights, such as freedom of speech or freedom of information prevails, which is why each case should be thoroughly analyzed.
In an effort to summarize these limitations, the Colombian Constitutional Court, in Sentence T-546 from 2016, stated that the right of publicity is not violated in the following circumstances:
Finally, it is worth mentioning the Blanco Porcelana case (Sentence T-015 from 2015), in which the Colombian Constitutional Court favored the right of freedom of artistic expression over the right of publicity. In that case, the court allowed family photos of an author of a book on racism in Colombia to be used in the book without violating the right of privacy.
The Relationship between the Right of Publicity, Intellectual Property, Torts and Competition Law
Although the right of publicity is a constitutional right in Colombia, the right must be weighted against economic and commercial factors. Damages related to the right of publicity do not come solely from a writ for the protection of constitutional rights (which do not entail economic damages), but can also arise from a private tort action. In these cases, it must be proved that the unauthorized use of the image caused moral and proprietary damages due to the individuals being denied the right to use their own image. For instance, in 2015, the Columbian Council of State sanctioned a Colombian liquor company for using the image of a university student on its advertising billboards, sentencing the company to compensate the student for moral and proprietary damages.
Another way to claim economic damages for the violation of the right of publicity is through an act of unfair competition. In this case, a famous person alleged that the use of its image by a third party for advertising purposes constitutes the misappropriation of the other party’s reputation. In these cases, it is necessary to prove that the person whose image is being used is considered famous. A case of this nature occurred in 2004, when renowned race car driver Juan Pablo Montoya was able to prove that a company committed acts of unfair competition against him by using snapshots of his image to promote their products (Resolution 04987 from March 9, 2004, Colombian Superintendence of Commerce and Industry).
Regarding Intellectual Property, the existence of a copyright does not establish a right of publicity. Unlike what happens in countries such as Mexico, Colombian Copyright legislation does not protect characters. Thus, even if someone has created a character that made him/her famous, such character cannot be copyrighted. Unauthorized use of the character’s image cannot be pursued through a copyright action. Instead, violation of the right of publicity for using the character’s image, must be pursued through other legal channels, such as tort actions or unfair competition actions.
By contrast, a trademark registration will not be permitted when it will impede on the right of publicity belonging to an individual or legal entity. This rule was noted in Decision 486 from the Andean Community and has been recognized and applied by the Colombia Trade Mark Office to protect the image of famous people and the name of musical groups (Resolution 16010 from 2016, in the case CHOQUIBTOWN v. CHOKIBTOWN).
In sum, Columbia recognizes and protects the right of publicity through legislation and court rulings and generally, with some exceptions, protects people from unauthorized use of their name, image, or likeness. Each case must be carefully analyzed to determine if a specific use is allowed, either by express authorization or due to an applicable exception such as those designed to protect free speech and artistic expression rights.
* Julián David Ruiz Rondan is an associate in the Copyright, Entertainment and Media Department in the Colombian Law Firm LLOREDA CAMACHO & CO. Mr. Ruiz is the Secretary-General in the Colombian Copyright Centre (referred to by its Spanish acronym CECOLDA) and he is member of the Association Littéraire et Artistique International (ALAI). Mr. Ruiz can be contacted at firstname.lastname@example.org.