Belzuz abogados (Insuralex Spain) will study the civil liability of the promoter of a show for the use of the name and image of a famous person without their prior consent. To do so, we will analyse the criterion maintained by the Supreme Court Ruling 486/2022 of 16/06/2022.
The problem raised is to establish the difference between the use of the name and image of a deceased celebrity to pay tribute and recognition or, on the contrary, to take advantage of their image and fame to publicise the event for purely lucrative purposes.
Specifically, the Iberia Music Festival in Benidorm used the image of a famous person who had been part of a group as a vocalist from 1982 to 1987. Some of his heirs sent a burofax requesting the organisers to remove the image from the advertising posters in order to comply with their wish that no tribute should take place. Finally, as the request was not complied with, the heirs sued the organisers of the event.
Supreme Court Ruling 486/2022 of 16/06/2022 analyses the application of the exceptions provided for in art. 8 of Law 1/1982, of 5 May, on the civil protection of the right to honour, personal and family privacy and one’s own image.
Having established the basis of the claim by the heirs of the celebrity involved in the alleged offence against his honour, the lower court did not recognise the existence of any offence against his honour and neither did it recognise the profit motive: on the contrary, the Provincial Court did recognise their right to be compensated for having violated the honour, privacy and image of the celebrity with a profit motive.
The Supreme Court upheld the judgment of the Provincial Court.
The grounds of appeal were as follows:
“(1) Infringement of Articles 10 LEC and 1257 CC in relation to the lack of standing to sue the defendant company.
“2nd) Infringement of arts. 6.4 and 7 CC in relation to the doctrine of the lifting of the corporate veil.
“3) Infringement of art. 8.1 of Law 1/1982, of 5 May, on the civil protection of the right to honour, to personal and family privacy and to one’s own image.
“4) Infringement of articles 7.5 and 8.2.a) of Law 1/1982 of 5 May 1982, on the civil protection of the right to honour, personal and family privacy and one’s own image”.
With regard to the first and second pleas, the judgment states that the two pleas are linked, insofar as the passive standing, the absence of which is alleged in the first plea, is justified by the courts of first instance on the grounds that the lifting of the veil, which is the subject of the challenge in the second plea, was justified.
Under the aforementioned circumstances, the judgment made by the court of first instance is in line with the case law in that the following has been found: the poster advertising the festival only mentions Festival Iberia, and the website where the ticket must be obtained is www.iberiafestival.com; New Iberia Festival, S.L. was incorporated in 2017 to continue the activity of Iberia Festival, S.L.; and both entities not only have a very similar name, but also share a registered office and the aforementioned website. The foregoing contributes to show not only that there has been a business succession, but also that a confusion of personalities has been generated by the defendant, which could have been avoided by replying to the burofax of 4 October 2018.
Therefore, the question of the lifting of the veil arose on the occasion of the plea of lack of standing to bring proceedings, and in so far as its validity could have been disputed at first instance, its assessment by the court of first instance was justified.
With regard to the third plea: civil protection of the right to honour, personal and family privacy and one’s own image.
Although Article 7.6 of Law 1/1982 defines unlawful interference as the use of a person’s name, voice or image for advertising, commercial or similar purposes, Article 8.1 of that law excludes in general the consideration as interference of actions in which the use of a person’s name, voice or image for advertising, commercial or similar purposes is predominant, and the Court of First Instance has ruled that the use of a person’s name, voice or image for advertising, commercial or similar purposes is unlawful.
The plea must be rejected for the following reasons.
1. Rejection of the third ground of appeal. A person’s name and photograph may, in principle, be considered to be covered by the scope of protection of the right to a person’s own image under Article 18(1) of the Constitution. As we stated in Judgment 127/2020, of 26 February, the concept of “one’s own image”, which configures the fundamental right protected in that constitutional precept, has progressively broadened to go beyond the scope of its initial formulation as a representation of the physical features of the human figure and has become a notion apt to protect other distinctive elements of personal identity, such as the voice, the name, or (…) the firm”. This is also clear from the doctrine of the Constitutional Court contained in STC 117/1994, of 25 April:
“(T)he right to one’s own image guarantees the sphere of freedom of a person with respect to his most characteristic, proper and immediate attributes such as the physical image, the voice or the name, defining qualities of one’s own being and attributed as an inherent and irreducible possession to every person. The protection afforded by this fundamental right safeguards the power to decide on the purposes for which the manifestations of the person through his image, his identity or his voice are to be applied, both with regard to the observation and capture of the image and its manifestations and the subsequent dissemination or disclosure of the image and its manifestations.
In our case, the use of Florentino’s name and photographic image in the poster advertising the Iberia Festival 2018 concert, held in Benidorm on 12 and 13 October 2018, is proven. Specifically, a reference was made to a tribute to the late Florentino and this reference was accompanied by a photograph of him. The publicity dissemination of the festival was essentially done in digital media and various websites.
It is also on record that the organisers of the festival, prior to its celebration on 4 October 2018, had been requested by Florentino’s children and heirs to cease what they considered to be a use of their father’s name and image for commercial and lucrative purposes.
In view of these facts, the defendant’s actions in persisting in the use of Florentino’s name and image by publicising the festival and, specifically, the performances of 13 October, constitute a clear interference with Florentino’s right to his own image. There are no circumstances in the present case which justify the application of the exception of Article 8.1 of Law 1/1982 of 5 May 1982, invoked in the appeal. Although the reference to Florentino is seen as a tribute, in reality this mention constitutes a publicity appeal for the festival, in that it may attract some people because of the memory or affection that the name and image of that person arouses in them.
Fourth plea in law.
This plea alleges infringement of Articles 7(5) and 8(2)(a) of Law 1/1982, because the judgment under appeal did not take account of the exception provided for in Article 8(2)(a), which would legitimise the reproduction of Mr Florentino’s image, since he was a person of public renown and renown, and the image was taken at a public event, without the reproduction of the singer’s image being in any way detrimental to his memory.
The plea must be rejected for the reasons set out below.
Article 7.5 of Law 1/1982 considers an unlawful interference with the scope of protection of the right to one’s own image:
“The capture, reproduction or publication by photography, filme, or any other procedure, of the image of a person in places or moments of their private life or outside of them, except for the cases provided for in article eight, two”.
And art. 8.2.a) of Law 1/1982 provides:
“In particular, the right to one’s own image shall not prevent:
“(a) Its capture, reproduction or publication by any means when it concerns persons holding a public office or exercising a profession of public notoriety or projection and the image is captured during a public act or in places open to the public (…)”
- This exception has been analysed by the Constitutional Court, as we outlined in judgement 455/2022, of 31 May.
Constitutional Court ruling 72/2007, of 16 April, which also cites previous Constitutional Court rulings on the right to one’s own image, states that this right “is configured as a personality right, which attributes to its holder the power to have at his disposal the representation of his physical appearance that allows his identification, which entails both the right to determine the graphic information generated by the physical features that make him recognisable that may be captured or have public dissemination, and the right to prevent the obtaining, reproduction or publication of his own image by an unauthorised third party”.
However, the right to one’s own image does not comprise “the unconditional and unreserved right to prevent one’s identifying physical features from being captured or disseminated”. Like any other right, “it is not an absolute right, and its content is therefore limited by the content of other constitutional rights and property”.
The appellant bases this fourth ground of appeal on the ground that the use of Mr Florentino’s image was justified and did not constitute an interference with the right to his own image because he is a public figure and the image was taken at a public event.
Without denying that Mr Florentino had achieved a certain degree of notoriety among the public, especially the music fans of the 1980s, that consideration does not justify any use of an image of Mr Florentino.
It should be noted that the use of the image does not illustrate a news item or related information directly concerning Mr Florentino , nor was it taken on the occasion of the news item illustrated. It is an archive photograph, the use of which does not correspond to the exercise of a right to information, but to the aforementioned advertising and commercial purpose.
In that context, it is irrelevant whether Mr Florentino is a public figure, or where the image was taken. It is not apparent that there is a public interest in the dissemination of Mr Florentino’s image on the poster advertising the music festival organised by the defendant, nor, much less, that that public interest could constitutionally be considered to prevail over the interest of Mr Florentino’s heirs in preventing the dissemination of his image.
Conclusion. – The exceptions of Article 8 of Law 1/1982 of 5 May 1982 on the protection of the right to honour, personal and family privacy and one’s own image do not apply when the circumstances in which the name, an image or photographs of the same are used are for commercial, advertising or lucrative purposes, given that with these purposes the exception of cultural interest is lost in favour of these other purposes. To which must be added the lack of consent of his heirs.
Socio / Partner Insurance Department
