The new Civil and Commercial Code contains several sections that refer directly and indirectly to IP matters (for further information please see "IP rights under new Civil and Commercial Code").
Section 53 addresses image rights in terms similar to Section 31 of the Intellectual Property Law (Law 11,723). In general, image rights have:
- a positive aspect, which refers to the rights holder's privilege to authorise the publication and reproduction of his or her image and receive image-related financial profits; and
- a negative aspect, which refers to the right to prohibit third parties from obtaining and publishing a rights holder's image.
Although they are closely related, image rights must be distinguished from the right to privacy. For example, image rights can be infringed through the publication of an image without the owner's consent, but without violating that person's privacy.
For people who can obtain proprietary benefits from their own image, as is the case for famous people, this right is analogous to (and begins to function as) an IP right. When applied to products or services, the image of a person may become a trademark, which functions as a distinctive sign, thus enabling the mental association of consumers.
Registering an image as a trademark or authorising third parties to do so does not fall within the scope of personal rights; instead it belongs to the field of intellectual property.
Regarding image rights, Section 53 of the new code establishes the following:
"In order to capture or reproduce the image or the voice of a person, regardless of the manner in which it is done, their consent is required, except in the following cases:
a) when the person participates in public events;
b) when a priority scientific, cultural, or educational interest exists, and sufficient measures are taken to prevent unnecessary damage;
c) when it comes to the regular exercise of the right to provide information about an event of general interest.
In the case of deceased people, their heirs or the representative appointed by the testator in their last will and testament may give consent. Should there be disagreement among heirs of the same grade, the judge will decide. Twenty years after death, non-offensive reproduction will be free."
Section 53 is broader than Section 31. Section 31 refers exclusively to portraits (although both doctrine and case law have widened its scope regarding interpretation), while Section 53 covers visual, auditory and audiovisual registrations.
Under Section 53, the rights holder's consent is required not only for the reproduction or publication of an image or voice, but also for the capturing thereof.
Further, in contrast to the previous text, the new regulation does not include the phrase "it may not be commercialized". Any recording without the rights holder's consent (whether for commercial reasons or not) is illegal.
For further information on this topic please contact Daniel R Zuccherino at Obligado & Cia by telephone (+54 11 4114 1100) or email (firstname.lastname@example.org). The Obligado & Cia website can be accessed at www.obligado.com.
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