Gigi Hadid and image rights.
Recently, we have had knowledge of the lawsuit filed by photographer Peter Cepeda (PC) against the model Gigi Hadid for the unauthorized use of the photograph taken by the photographer (PC) in instagram and other social networks, which portrayed his own image (backwards) and the photographer (PC).
This photograph was taken in the public thoroughfare, to Gigi, who can undoubtedly be considered a public figure, so from the point of view of Spanish law, this case fulfills all the requirements of exception to the right to one’s own image:
Article 8 (Organic Law 1/1982, of 5 May, on Civil Protection of the Right to Honor, Personal and Family Privacy and One’s Image)
- In general, unlawful interference shall not be deemed to be in any way unlawful if it is authorised or agreed by the competent authority in accordance with the law, nor if a relevant historical, scientific or cultural interest prevails.
- In particular, the right to one’s own image will not prevent:
a) Its capture, reproduction or publication by any means, when the person concerned is a public official or a profession of notoriety or public projection and the image is captured during a public event or in places open to the public.
b) The use of the caricature of such persons, in accordance with social use.
(c) Graphical information on a public event or occurrence where the image of a particular person appears as merely incidental.
The exceptions referred to in paragraphs (a) and (b) shall not apply in respect of authorities or persons performing functions which by their nature require the anonymity of the person exercising them.
However, this article is intended to raise a number of questions for reflection, we give our answer but leave the way open for other interpretations,
What is the extent of the intellectual property rights of a photographic work as opposed to the right to privacy and one’s own image?
The right to one’s own image is defined in our legal system as a fundamental right of people, closely linked with others, such as the right to honour, personal and family privacy or the protection of personal data.
The Spanish Constitution recognizes and guarantees (article 18.1), as fundamental rights; honour, personal and family privacy and self-image.
These are the so-called “rights of the personality”, whose protection in the civil sphere, as opposed to “illegitimate interferences”, is provided for in Organic Law 1/1982, of 5 May, on Civil Protection of the Right to Honour, Personal and Family Privacy and the Own Image.
On the other hand, our Ordinance defines intellectual property rights as rights in tangible property.
From this perspective, therefore, we must understand that the right to each person’s own image must prevail over the photographer’s intellectual property right.
Can the unauthorized photographer prevent the photographer himself or herself from using the photograph?
We must assume that the image of a person in itself is one thing (an intangible right that belongs to himself) but the artistic way of interpreting that image through painting, sculpture or photography is another.
Does that interpretation by an artist of our public image, our face, become an autonomous and independent work to us without having any capacity of control or decision over it.????
Unfortunately, we must answer that this is the case, if we are a public figure, we lose, in part, the right to our own image, but also to the benefit and exploitation of third parties?
Can a photographer, therefore, be enriched by marketing a photograph, which reflects the image of a public figure and obviously that image is what actually provides the value content of it?
Can the photographer exclude from the benefits of such commercialization the person who holds those image rights?
From our point of view, a clear limit should be established here, since the photographer is finally granted the exclusive right of decision on the work, its commercialization, license or exploitation – yes, of his photograph, but of our face or face – without the portrait having any power to decide.
A musician can stop his melody from playing on youtube, but a public figure can’t stop the photograph of his face from being seen on youtube. There’s something in these reasoning that rejects, legally doesn’t work.
As the Supreme Court reminds us in its ruling of 22 January 2014, appeal No. 1305/2011;”If the publication of a person’s image affects his or her right to his or her own image, but also his or her right to honour or privacy, the devaluation of the conduct prosecuted increases, as stated in Constitutional Court ruling No. 14/2003, as far as it violates more than one of these rights”.
It makes sense for a public figure to be subject to certain restrictions on their rights in favour of general information, as long as, in our opinion, images or photographs are captured at public events or events with public repercussions, but does it suffice, for example, to be able to photograph a public figure when he goes to the cinema with his family on a Saturday? Evidently Article 7 of Organic Law 1/1982 has a clear answer:
They will be considered as illegitimate interferences in the scope of protection defined by article 2 of this law:
- Capture, reproduction or publication by photograph, film or any other process of the image of a person in or outside their private life, except in the cases provided for in Article 8.2.
I believe that there is no legal basis to defend, distorting the purpose and spirit of Art. 7, the possibility of violating the intimacy of a public character by taking photographs, even though they are in the public thoroughfare, when it is not in an official or related act and related to his work, therefore, we understand that at that time should ask permission to reproduce his image without ambiguous interpretations.
It is also true that it is difficult to weigh the weighting of freedom of information against respect for privacy and self-image rights, TS S-499/2014 of 23 September states:
In order for an intrusion into the rights to one’s own image and privacy to be considered justified, it is necessary that the information or expression refers to matters of public relevance or general interest… the criterion for determining the legitimacy or illegitimacy of intrusions is not that of truthfulness, but that of the public relevance of the fact disclosed….
In these cases, where there is an artistic work such as a photograph but referring to the image right of a public character, there is an interrelationship of factors, such as the capturing of the image, the form and expertise to obtain it, the appropriate moment of it, which is also enriched and obtained its value by the face of the character being portrayed.
We believe that at least one resale right (of the right of resale to authors in the resale of their works as stipulated in Law 3/2008, of 23 December, on the resale right for the benefit of the author of an original work of art) should be contemplated here, which grants the owner of the image a profit from the exploitation of the same.
We also understand that the photograph is the property of its author but that his right should not reach the mere exhibition of it by the owner of the image, excluding any right of exploitation property, means that if the holder of the image rights wants to publish[i] that photograph on their social networks (your account of instagram or facebook etc… should be able to do so) what would not be entitled in any way is to reproduce, distribute, publicly communicate or transform.
On the other hand, it should be granted a countervailing duty such as participation.
* For another post we leave our comments about the photographic reproduction of a reputable trademark and its alteration.
[i] We must take into account the conditions of publication on social networks because they usually require an assignment of exploitation rights in which the owner of the image should not be entitled and therefore, in the conditions of these contracts, should not be able to publish them on the networks.