Sources of lawRight of publicity
Is the right of publicity recognised?
Yes, the right of publicity is recognised by the Mexican laws.Principal legal sources
What are the principal legal sources for the right of publicity?
At the federal level, right of publicity is recognised in the following laws:
- the Mexican Constitution;
- the Federal Civil Code (the CCF);
- the Federal Copyright Law (the Copyright Law);
- the Industrial Property Law; and
- the Federal Law for the Protection of Data in Possession of Subject Parties (the Data Privacy Law).
Furthermore, there are different laws in Mexico that refer to the right to an image, such as the Regulatory Law of the first paragraph of article 6 of the Constitution on the rebuttal right, and the General Law on the Rights of Children and Adolescents.
At the local level (ie, within the states of Mexico, including Mexico City), right of publicity is recognised in several laws. The following are some of the laws applicable in Mexico City; however, this should not be understood as an exhaustive analysis of all the states:
- article 6 of the Political Constitution of Mexico City;
- the Law on Civil Liability for the Protection of Private Life, Honour and Self-Image (the CDMX Law);
- the Law for the Protection of Data in Possession of Subject Parties of Mexico City; and
- some criminal codes of the states of Mexico.
How is the right enforced? Which courts have jurisdiction?
In the case of a publicity right violation in Mexico, it is possible to initiate an administrative, civil or criminal proceeding. The authority that will have jurisdiction to analyse and resolve the infringement or violation to the right of publicity, will depend on the legal strategy to be followed to protect it; however, in general terms, we can mention the following:
- the Mexican Institute of Intellectual Property (IMPI);
- the National Copyright Authority.
- federal or local civil judge;
- criminal judge;
- National Institute for Transparency, Access to Information and Data Protection (INAI); and
- local institutes on personal data protection.
Are there other rights or laws that provide a claim based on use of a person’s name, picture, likeness or identifying characteristics?
No additional laws to those mentioned in question 2, provide a claim based on use of a person’s name, picture, likeness or identifying characteristics.
In connection to other rights, it is important to mention that pursuant to the Industrial Property Law, the image, the identifiable voice, the portrait and the signatures of persons may be registered as trademarks and assigned to third parties; and in the case of a violation on a right of publicity, it might be possible to initiate a civil lawsuit an indemnification arguing moral damage (see question 15).
Existence of rightProtectable aspects
What aspects of a person’s identity are protectable under the right of publicity?
The following are the aspects that each law set forth in question 2 protects under the right of publicity.
- CCF: a person’s honour, private life and self-image.
- Copyright Law: individual’s image understood as his or her representation through any material support, such as painting, sculpture or photography, among others, but not as the opinion, concept or idea that is held of a person’
- Data Privacy Law: personal data (ie, any information concerning an identified or identifiable physical person, including his or her image). Furthermore, this Law grants special protection to personal data that for its nature is considered sensitive (ie, the personal data that affects the most intimate sphere of a person, or the improper use of which may cause discrimination or a serious risk to the person), especially the personal data that may reveal aspects such as racial or ethnic origin, present or future health condition, genetic information, religious, philosophical and moral beliefs, union membership, political opinion and sexual preference.
- Regulatory Law of the first paragraph of article 6 of the Constitution on the rebuttal right: a person’s honour, private life or image.
- General Law on the Rights of Children and Adolescents: honour, image or reputation of children and adolescents.
- Mexico City Constitution: name, image, reputation, recognition, identity and legal personality of a person, group or community.
- CDMX Law: the identifiable reproduction of a person’s physical features on any material support.
- Law for the Protection of Data in Possession of Subject Parties of Mexico City: image as personal data in the same terms as the Data Privacy Law.
- Some criminal codes of the states of Mexico: a person’s honour and reputation.
Do individuals need to commercialise their identity to have a protectable right of publicity?
No, this is not a requirement under Mexican law.Foreign citizens
May a foreign citizen protect a right of publicity under the law of your jurisdiction?
Due to the territorial application of Mexican laws, the citizenship of the individual is irrelevant. Foreign citizens are entitled to the protection of their right of publicity on the same terms as Mexican nationals or citizens.Registration requirements
Is registration or public notice required or permitted for protection of the right? If so, what is the procedure and what are the fees for registration or public notice?
Registration or public notice is not required to protect the right of publicity. Notwithstanding the foregoing, for it to be considered as a trademark before the IMPI, the image, identifiable voice, portrait or signatures of persons must be registered with the IMPI.Protection after death
Is the right protected after the individual’s death? For how long? Must the right have been exercised while the individual was alive?
In terms of the Copyright Law, the rights of portrayed persons will last 50 years after their death. In copyright matters, both the individuals and their successors are entitled to bring the respective action before the National Copyright Authority.
With regard to the protection of personal data of deceased persons, the person who proves to have a legal interest, pursuant to the applicable laws, may exercise the rights granted by the applicable laws, provided that the owner of the rights has faithfully expressed his or her will in this regard or that there is a court order for such effect.
In civil matters, an action for moral damages can only be brought by the victim’s heirs when the victim has attempted the action while alive. There is a special case provided for in article 674 of the Civil Code for the state of Quintana Roo, which provides that when the image of a person or spouse, or a person living with him or her as a spouse, his or her ascendants, descendants or collateral to the fourth degree reproduced or exhibited without a lawful purpose, the judicial authority shall order the suspension of the reproduction or exhibition, without prejudice to the responsibility of the author or authors of the reproduction or exhibition.