Introduction
What is the ROP?
Peruvian case law
Comment
In recent years, several famous athletes and artists have assigned an asset, often described as their "image rights", to another party. These assignments often include a combination of rights, including intellectual property and privacy. Such rights interact with each other in different ways.
This article reviews the so-called "right of publicity" (ROP). Under the Peruvian legal system, the ROP covers what would otherwise be protected through image rights (derived from the right to privacy), copyright, trademark law or unfair competition.
The ROP can be understood as a measure to protect individuals against the unauthorised use, for commercial purposes, of:
- their image;
- their voice;
- their likeness;
- their name;
- their identity;
- their reputation; and
- other distinctive elements, such as:
- their signature;
- famous phrases they came up with;
- their characteristic clothing; or
- their gestures and mannerisms.
This right is largely based on the law of unfair competition – in particular, the doctrine of misappropriation of another's reputation or effort. This is essentially the same theory that is applied in trademark law.
However, unlike image rights, the ROP covers not only the direct use of a person's image or voice, but also the use of representations that require intellectual mediation, such as portraits and imitations. On the other hand, the ROP does not protect all types of use of the image of individuals, as is the case with the right to one's own image and voice – instead, it specifically protects against exploitation of a commercial nature.
In Peru, there has been an important precedent on the use of the representation of a celebrity in an audiovisual work. The Peruvian National Institute for the Defence of Competition and Protection of Intellectual Property Court ruled on an unfair competition complaint filed by Andina de Radiodifusión SAC against Compañía Latinoamericana de Radiodifusión SA for alleged acts of undue exploitation of the reputation of others and denigration as a consequence of the broadcasting of the miniseries Magnolia Merino.(1) The Court concluded that:
to sanction as unfair acts of denigration the content of a work of fiction, which is the product of the creation of its authors and has a marked critical purpose, as well as to curtail its public broadcasting through a means of expression, would substantially restrict the content of the fundamental right to freedom of expression.
The ownership of image rights can have tax implications and any related sales or licensing must be carefully managed to ensure that they are effective from every perspective. The ability to structure and manage them explains why these rights are so popular with both established and emerging stars. For example, as sporting careers are usually short, it is important for athletes to maximise their income during their careers in order to accumulate it for when they are no longer active.
Image rights provide a mechanism to deal with cases of infringement by unauthorised third parties and commercial relationships. However, not every type of commercial exploitation is considered improper, as Peruvian law protects artistic and cultural expressions, as well as opinions and ideas, in a fairly broad manner, regardless of whether they are commercially exploited.
It is also important to mention that the protection provided by freedom of expression is not absolute, but may require the evaluation of the real existence of the protected expressive factor. It may need to be weighed up against other applicable rights.
For further information on this topic please contact Vicente Campodonico at OMC Abogados & Consultores by telephone (+511 502 6467) or email ([email protected]). The OMC Abogados & Consultores website can be accessed at omcabogados.com.pe.
Endnotes
(1) Resolution 3251-2010/SC1-INDECOPI, file No. 202-2008/CCD.