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Use of Celebrities
in Advertising Uri Weinstok
Weinstok AbogadosCosta Rica
[email protected] www.weinstok.co.cr
Right to Use One’s Personal Image
Basic principle
• A person’s image can’t be used without consent
• Main exception: Police, scientific or academic purposes; facts occurred in public, uses based on public interest.
• All exceptions must be interpreted restrictively.
• Exception DOES NOT apply to commercial use.
"With Ryanair, all my family can come to the wedding."
• Even though it is a widely accepted principle, there are some sides to it.
• Regulations and case law in Latin America is not abundant, but still some basic principles can be identified.
“Very personal” right (Personalísimo)
• Enjoyed by everyone
• Outside commerce (can’t be transferred)
• Do not expire
• Enjoy benefit of the doubt
• Consent is always revocable (provided that damages are paid)
Person must be recognizable
• If the person is not identifiable, he/she can’t complain against unauthorized use
• One’s personal image is not affected
Librería Internacional
Limits to given consent
• An authorization for certain uses does not necessarily imply other uses.
– Different media (press vs. Internet)
– Later uses
– Team sponsorships vs. Image of players
Paulo Wanchope v. Taca - 2001
Cristal 2004
Advertising must be truthful…
…But sometimes telling the truth is not enough…
Franklin Chang – TLC
Use of the Image of the Deceased
Dr. Martens Footwear
• OK in the UK
• Got in trouble when published in a US based website
• Agency was fired over ad
Being a very personal right, it would normally end upon death• BUT:
– Image of the deceased must be used with respect
– In some countries (in LA), Copyright laws give some rights to the descendants for a limited time(even when someone’s portrait is not a creation of his intellect)
– This is one of the issues where Laws in different places vary significantly
Namesakes & Look-alikes
A violation can occur even when a person’s portrait is not used
Oscar Arias and CAFTA
Relation with Copyrights
Rights over a picture vs. Image rights
Rights over fictional characters
Virgin Mobile – 2007
Grosby Shoes
Trademarks & Image Rights
•Sometimes a person’s image gives distinctive character to a product and becomes a trademark.
•In these cases, the scope of protection is wider
Frank Perdue
Other Relevant Issues with Use of Celebrities
Scandals
• Use of competing products
• Change of circumstances (retirement, injury, etc.)
• Bad press
No matter what Laws apply
• Ensure rights in writing. Do not rely on presumed verbal consent.
• Contracts may solve most issues described.
• If it works somewhere, it will not necessarily work everywhere.
