Image Right and Copyright Law in Europe: Divergences and Convergences
2. The Multiple and Conflicting Sources of Image Rights in Europe
2.1. Civil Law: An Approach Based on the Right of Privacy and the Right of Personality
2.1.1. The Duality of Image Rights
2.1.2. The Dual Nature of the Image Right
2.2. The Piecemeal Protection of a Person’s Image Provided by Tort Law in the UK
2.2.1. The Tort of Breach of Confidence as a Form of Privacy Protection
2.2.2. A Modern Approach to the Tort of Passing Off: A Substitute for a Publicity Right?
3. Creating a Bridge between the Image Rights and Copyright Law
3.1. Image Rights vs. Copyright Protection and vice-versa, a Classic Discussion
3.2. Copyright Law as a Model for the Patrimonial Right of Exploitation of Image
3.2.1. The Right of Image as an Intellectual Property Right
3.2.2. The Illustrious Precedent of the US Right of Publicity
3.2.3. Towards a Unified Solution for Image Rights, Based on the Example of Copyright Law?
Conflicts of Interest
References and Notes
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- See for example TGI, Nanterre, 6 Avril 1995, “Affaire Cantona.” Gazette du Palais 1 (1995): 285.: “Independently from the protection of his privacy, everyone—celebrity or not, has an exclusive right over his image, which is an attribute of his personality, and this right enables him to authorize or to refuse the reproduction of his image, to decide the conditions and the circumstances of this reproduction and to oppose to the use of his image, regardless means whatsoever, without his express or implied consent”. TGI Marseille, 6 Juin 1984, “Izzo vs Seppin.” Dalloz, 1985. sommaire 323, obs. R. Lindon.
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- Article 10, under the heading “Abuse of a third party’s image”, provides that “everybody is entitled to seek judicial protection against the publication of that person’s image, as well as the image of his or her spouse, parents or sons and daughters, whenever such publication occurred in a situation and context other than those where exposure or publication is permitted by the law, or whenever the publication results in prejudicing that person’s or his or her kin’s reputation. Judicial protection includes both order for cessation and right to be awarded damages”.
- The basic rule in respect of the use of a person’s image is that the portrait of a person cannot be shown, reproduced or put on the market without the consent of its legitimate owner.
- See: Federica Gioia. “Property, Privacy and Personality Research Stream, Comparative Aspects of Personality Rights: Research Project and Case Studies.” Available online: http://www2.law.ed.ac.uk/ahrc/files/92_pppcasestudiesfinaljan07.pdf.
- Pretura di Roma, 18 April 1984 (). See also: Pretura di Roma, 18 February 1986, in Dir. Aut., Note 6 above, at 215, with comment of Assumma, “Lo sfruttamento a fini pubblicitari della notorietà di attori, artisti e sportivi” Pretura di Roma, 15 November 1986, Claudio Baglioni v. Colgate Palmolive, in Temi Romana, Note 7 above, at 744, with comment of Lombardi, “Pubblicita” commerciale lesiva di diritti della personalità di noto artista”.
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- Campbell v. Mirror Group Newspapers Ltd (2004) 2 AC 457 (HL).
- In order to pass the test all the circumstances of the case will be examined such as : “the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purpose for which the information came into the hands of the publisher”: Murray v. Express Newspapers Plc (2008) ECDR, para. 36 per Sir Anthony Clarke MR.
- As Lord Hofmman observed: “There is in my opinion no question of creating an ‘image right’ or any other unorthodox from of intellectual property. The information in this case was capable of being protected, not because it concerned the Douglases' image any more than because it concerned their private life, but simply because it was information of commercial value over which the Douglases had sufficient control to enable them to impose an obligation of confidence.” See: Lord Hofmman (124)  UKHL 21.
- See also: Christina Michalos. “Douglas v Hello: The final frontier.” Entertainment Law Review 18, no. 7 (2007): 241–46. [Google Scholar] It is submitted by the author that the difficulty that the question of the jurisprudential basis of the celebrity magazine OK! poses is precisely because the nature of both the Douglases’ claim and that of OK! was not one of breach of confidence but rather concerned a right of publicity (which as yet the English common law has yet to embrace).
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- See: McCulloch v. May  5 RPC 58. The judge dismissed the passing off claim on the ground that there was no connection between the plaintiff’s business (presenting radio programs) and the defendant’s business (selling cereal).
- Fenty v. Arcadia Group Brands Ltd (t/a Topshop)  EWHC 2310 (Ch);  F.S.R. 5 (Ch D).
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- The preexisting collaboration of the retailer with the famous singer and its position of as a major high street retailer that trades on its association with celebrities were deemed sufficient to create a real likelihood that a substantial number of customers would be deceived into thinking the t-shirt was an authorized item. See: Jeremy Roberts, Face off: Rihanna wins “image rights” case, . Moreover, the claimant’s involvement in a range of trading activities ended up to built up goodwill in her image through a significant range of trading interests, such as a style leader.
- As Birss J. notes, whatever the position in other jurisdictions and however much celebrities might wish for one, there is no freestanding general right for an individual to control the reproduction of their image.
- Huw Beverley-Smith, and Liddy Barrow. “Talk that tort... of passing off: Rihanna, and the scope of actionable misrepresentation: Fenty v. Arcadia Group Brands Ltd (t/a Topshop).” European Intellectual Property Review 36, no. 1 (2014): 57–61. [Google Scholar]
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- See from the US the famous Vanna White case where the claimant, the hostess of “Wheel of Fortune” TV show, was represented in an advertisement via a female-shaped robot: White v. Samsung Electronics America, Inc 989 F.2d 1512, 1993 US App.
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- Vereinigung Bildender Kunstler v. Austria, no. 68354/01, 25 January 2007.
- Section 78 of the Copyright Act, in so far as relevant, reads as follows: “(1) Images of persons shall neither be exhibited publicly, nor in any way made accessible to the public, where injury would be caused to the legitimate interests of the portrayed persons or, in the event that they have died without having authorised or ordered publication, those of a close relative.”
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- See: Mira Sundara Rajan. “Moral or economic rights? ” In Overlapping Intellectual Property Rights. Edited by Neil Wilkoff and Shamnad Basheer. Oxford, UK: Oxford University Press, 2012, pp. 217–20. [Google Scholar] For the perpetuity of the French “droit moral”, see: André Lucas, Henri-Jacques Lucas, and Agnés Lucas-Schloetter. Traité de la Propriété Littéraire et Artistique. Paris: Lexis Nexis, 2013, p. 562. (In French) [Google Scholar]
- See for example the Cypriot Copyright law (article 7 (4) of Law 59/1976).
- For example in the UK the right to prevent false attributions subsists until 20 years after the author’s death (CDPA 1998, s. 86).
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- The author emplasizes that “Treating “image rights” as intangible assets suggests that they are an intellectual property right of some kind, a factor which is likely to convince the judiciary or the legislature into finally giving celebrities the legal backing to commodify their celebrity”.
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- The author proposes the introduction for a separate publicity right both in the UK and in Germany: “By contrast, 50 years of daily practice have proven the advantages of separate publicity rights in the United States. Regardless whether on a common law basis or by statutory provisions as in New York or California, the use of separate property based publicity rights leads to more security, clarity and market stability. Maybe it is time to change attitudes?”
- Jason Romer. “Image is everything! Guernsey registered image rights.” Entertainment Law Review, 2013, 51–56. [Google Scholar] As Romer notes “Guernsey image rights are property rights acquired by the registration of a “personality” in Guernsey’s Register of Personalities and Images, which gives the proprietor of the registered personality exclusive rights in the images associated with or registered against that registered personality”.
- A remarkable example is the use of the image of athletes for endorsement and merchandising.
- Thorsten Lauterbach. “US-style ‘personality’ right in the UK—En route from Strasbourg? ” In Presented at 20th BILETA Conference: Over-Commoditised; Over-Centralised; Over-Observed: the New Digital Legal World? Queen’s University of Belfast, United Kingdom, April 2005; Available online: http://www.bileta.ac.uk/content/files/conference%20papers/2005/US-style%20Personality%20Right%20in%20the%20UK%20En%20Route%20From%20Strasbourg.pdf.
- “CJEU, Judgment of the Court of 25 October 2011 in the joined cases C-509/09 and C-161/10, eDate Advertising GmbH v. X and Oliver Martinez v. MGN Ltd.” Available online: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009CJ0509:EN:HTML (Accessed on April 18 2014).
- Shevill v. Presse Alliance SA (C-68/93)  E.C.R. I-415;  2 A.C. 18.
- For an analysis of these cases see: Paul David Mora. “Jurisdiction and applicable law for infringements of personality rights committed on the internet.” European Intellectual Property Review 34, no. 5 (2012): 350–53. [Google Scholar]
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- See: Khmel v. Russia, no. 20383/04, § 40, 12 December 2013; Küchl v. Austria, no. 51151/06, § 58, 4 December 2012; Von Hannover v. Germany (no. 2) nr. 40660/08 and 60641/08, §§ 95–96, ECHR 2012; Eerikäinen and Others v. Finland, no. 3514/02, § 61, 10 February 2009; Khuzhin and Others v. Russia, no. 13470/02, § 115, 23 October 2008; Gurgenidze v. Georgia, no. 71678/01, § 55, 17 October 2006; Sciacca v. Italy, no. 50774/99, § 29, ECHR 2005‑I, and Von Hannover v. Germany, no. 59320/00, §§ 50–53, ECHR 2004‑VI).
- For the possibility of creating celebrity rights under article 8 of the; Welkowitz, see: David S. ECHR. “Privatising Human Rights? Creating Intellectual Property Rights from Human Rights Principles.” Akron Law Review 46 (2013): 675–726. [Google Scholar] The author also refers to the opposite precedent in the case Vorsina v. Russia (no. 66801/01, 5 February 2004), where the ECHR refused the application of the heirs of a man whose portrait was used on bottles of beer on the grounds that by giving the portrait in question to a local museum, the family “had agreed, in principle, that the portrait may be seen by others” and also that the brewery's use did not dishonor the family. Nevertheless, as the author states it is highly possible that this is a special case since the question was about the picture of a deceased person.
- See, for example: Balan v. Moldova, no. 19247/03, pp. 34–35, 29 January 2008) (copyright); Anheuser-Busch, Inc. v. Portugal, no. 73049/01, p. 10, 11 October 2005) (Chamber opinion); Anheuser-Busch, Inc. v. Portugal, no. 73049/01, 11 January 2007) (Grand Chamber) (trademark registration application).
- The direct inclusion of the right of publicity to copyright was sporadically defended by the doctrine (see: Roberta Rosenthal Kwall. “Intellectual Property Challenges in the Next Century: Preserving Personality and Reputational Interests of Constructed Personas through Moral Rights: A Blueprint for the Twenty-First Century.” University of Illinois Law Review 2001 (2001): 151–72. [Google Scholar] but firmly rejected by courts. See: Brown v. Ames, 201 F. 3d 654, 658 (5th Cir. 2000): “(a) persona does not fall within the subject matter of copyright—it does not consist of a ‘writing’ of an ‘author’ within the meaning of the Copyright Clause of the Constitution.”
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- Strict or more lenient provisions in respect of this issue can be found in EU member States. In Belgium, France and Poland the type of rights to be transferred as well as each exploitation mode need to be expressly specified in the contract. In the UK, the law only requires parties to identify clearly what is being transferred or licensed. The work must be identified clearly enough that it can be ascertained. However, oral evidence can be adduced to assist in identifying the work. See: “EU Parliament Study, Contractual arrangements applicable to creators: law and practice of selected Member States.” February 2014. Available online: http://www.europarl.europa.eu/meetdocs/2009_2014/documents/juri/dv/contractualarangements_/contractualarangements_en.pdf (accessed on 22 April 2014).
- See for example: Belgium, LDA, art. 1(2); France, CPI, art. 121(1); Germany, UrhG, s.29Abs 1; Hungary, HCA, art. 9(2); Poland, UPAPP; Spain, LPI art. 14; Sweden, URL, art. 3. See: , p. 36.
- In Germany the assignment of the economic rights is also prohibited.
- Christophe Caron. “Les contrats d’exploitation de l’image de la personne.” In L’Image. Association Henri Capitant des Amis de la Culture Juridique Française, Journée Nationale, tome VIII, Actes du colloque organisé le 20 juin 2003 à l’Université de Grenoble. Paris, France: Dalloz, 2005, p. 104. [Google Scholar]
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Synodinou, T. Image Right and Copyright Law in Europe: Divergences and Convergences. Laws 2014, 3, 181-207. https://doi.org/10.3390/laws3020181
Synodinou T. Image Right and Copyright Law in Europe: Divergences and Convergences. Laws. 2014; 3(2):181-207. https://doi.org/10.3390/laws3020181Chicago/Turabian Style
Synodinou, Tatiana. 2014. "Image Right and Copyright Law in Europe: Divergences and Convergences" Laws 3, no. 2: 181-207. https://doi.org/10.3390/laws3020181