Personal Image Right in Colombia
Image rights, also called right of publicity in the United States, has turned into a very important topic in the new social media environment.
1. Constitutional Rights
The right to self-image is part of personality rights, it protects the moral worth of the individual, protects a human being to develop a free personality and maintains a minimum quality of human life, avoiding capture, playback or unconditioned publishing of the image of a person.
As the Constitutional Court in Colombia has said, “the image or external representation of the subject has its origins in the person itself, which means that the unjust appropriation, publication, exhibition, reproduction, and marketing affects a very personal right”[1].
Respect for the right of self-image is one of the personality rights which contains two clearly identifiable aspects: the first aspect is the very personal power to capture, print, distribute, publish or distribute an image, for personal purposes as seen with family heirlooms or personal images; a second aspect can provide an economic benefit as those seen with professional models, actors, actresses, athletes or ordinary people. The second aspect also brings the ability to prevent the production, reproduction, dissemination, and distribution of an image by a third party, if there is no consent for use.
The Constitutional Court notes “an elementary consideration of respect and dignity for the person impedes that the external characteristics that note its appearance and that identifies the person more than any other external sign in its concrete individuality, can be freely available and for manipulation by others. (…) with deductibles legitimate limitations of the demands of human sociability, the pursuit of knowledge and other overriding public interests, everyone is entitled to their own image, with the result that without his consent, it can not be unfairly appropriated, published, exhibited, reproduced or marketed by another. “[2]
The image concept incorporates a set of subject peculiarities, which can’t be exposed, without any requirement to self-exploitation, in the audiovisual field or the printed elements. Of course, freedom in the contractual relationship allows the owner of the protected image to authorize the use and dissemination of other images used commonly and commercially, but may not be construed that the authority thus conferred implies the renunciation of the fundamental right at issue.
2. Legal Consecration
Article 87 of Law 23 of 1982 “Copyright and Related Rights” states protection of the right to the image, which corresponds to the constitutional sphere on personal rights.
“Article 87. Everyone has the right to prevent, or subject to the limitations set forth in Article 36 of this Law, his bust or portrait from being exhibited or put on the market without their express consent, or having deceased, the persons referred to in Article 88 of this Law. The person who has given his consent may revoke with the compensation for damages. ”
The said rule develops the image rights and clearly gives the holder the right to prevent the production, reproduction, dissemination, and distribution of your image, if they have not consented to a third party for this purpose.
That Article makes a reference to Article 36 of Act 23 of 1982, an article that states the following:
“Article 36. The publication of the picture is free when it relates to scientific, educational or cultural in general purposes or to facts or events of public interest to which have occurred in public purposes”.
The above article raises an exception to the general prohibition where the use of the image is free for the special cases cited therein, but by no means covers the free publication of the picture or likeness for advertising aspects. Except in cases arising in the exception in Article 36 of Law 23 of 1982, for every image use should have the authorization by the right holder, and each individual image should have consent or prior express authorization for use under the conditions such consent is granted.
3. Consent
The same Law 23 of 1982 reflects a basic principle that authorizations subject to this rule are always restrictive and can not extend beyond what has been expressly agreed. By consent, the holder defines the conditions of time, manner and place the image can be exposed. It is this sense, the holder does not give unlimited rights to his image unless it is agreed in that way, and only be able to use the image as understood in the permit, without the express consent of the owner.
The image rights enshrined in Article 87 of Law 23 of 1982 noted above, implies there is the explicit consent of the person whose photograph needs to be published, or their direct successors when they died. However, when there is the absence of consent, the publication of a portrait, generates liability of the publisher or media to publish the image and therefore compensation of damages.
The existence of consent must be interpreted strictly and its absence leads to a transgression of the rule. Likewise, the consent to the use of the image in an editorial or advertising campaign should not be construed as a consent to other publishers or advertising campaigns. When a person authorizes the publication and reproduction of their photographs or their portrait, they only partially cedes some of the powers of his image rights, without this constituting a complete waiver of the right in question.
Since the provision of the right to self-image must be interpreted strictly, unrestricted use is an obvious illegitimate and reckless act of the authorization granted. It should always be made clear the opportunity and the context in which such publication will be made, and the means to be used for publication or broadcast.[3]
[1] Constitutional Court, Judgments T-090 of March 6, 1996. Magistrate Eduardo Cifuentes Muñoz. The features of this fundamental right were developed in Case T-090 on March 6, 1996. Magistrate Eduardo Cifuentes Muñoz.; and subsequently applied in T- 471 of July 6, 1999, Magistrate, José Gregorio Hernández, and Case T-090 March 6, 1996, Magistrate. Eduardo Cifuentes Muñoz
[2] Constitutional Court, Judgment T-439 de 2009, Magistrate Jorge Ignacio Pretelt Chaljub
[3] Lipszyc, Delia “Creación artística y derecho a la intimidad”, ED. 58-745 – v. Gregorini Clusellas, E. “La violación del derecho a la propia imagen y su reparación” L.L. 1996-D-136
