use of celebrities in advertising uri weinstok weinstok abogados costa rica uweinstok@weinstok.co.cr

Use of Celebrities

in Advertising Uri Weinstok

Weinstok AbogadosCosta Rica

uweinstok@weinstok.co.cr 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.

THANK YOU!

Uri WeinstokWeinstok Abogados

Costa Ricauweinstok@weinstok.co.cr

www.weinstok.co.cr