Sources of lawRight of publicity
Is the right of publicity recognised?
Article 18.1 of the Constitution guarantees the right to honour, to personal and family privacy and to one’s own image, and refers to these personality rights as fundamental rights. Moreover, the Spanish Organic Act 1/1982 of 5 May (LO 1/1982) provides civil protection for these same rights. In that regard, the scope of the Spanish fundamental rights to one’s own image and to honour would be substantially similar to the scope of the common law right of publicity.
It should also be noted that in Spanish law, the protection of personality rights is split into two concepts:
- protection of the constitutional or fundamental content of the right under the provisions of LO 1/1982; and
- protection of the financial or commercial dimension of the rights under ordinary legislation.
In this chapter, any allusion to the right of publicity should be understood in respect of the Spanish fundamental rights to one’s own image and to honour in their constitutional context. On the other hand, allusions to personality rights should be construed in respect of the three basic rights provided under article 18.1 of the Constitution (namely, the right to honour, to personal and family privacy and to one’s own image - likewise, in a constitutional context). Where reference is made to the financial or commercial aspects of those rights, this shall be made explicit.Principal legal sources
What are the principal legal sources for the right of publicity?
The principal legal sources for the right of publicity are article 18.1 of the Constitution and LO 1/1982. Therefore, the right rests on a statute.Enforcement
How is the right enforced? Which courts have jurisdiction?Civil
The civil regime establishes two kinds of proceedings for hearing cases involving the infringement of personality rights as laid down in article 18.1 of the Constitution:
- ordinary proceedings laid down in article 249.1.2 of the Spanish Civil Procedure Act (LEC); and
- the procedure for rectifying information disseminated by any media (television, newspapers, radio, etc) provided under the LO 1/1984 of 26 March regulating the Right of Rectification (LO 2/1984).
Civil judges hold jurisdiction over both kinds of proceedings.
Notwithstanding, any disputes relating to the protection of any financial or commercial aspects of the right of publicity will be processed using the ordinary procedures established in the LEC. However, this facet of the right is excluded from the scope of LO 1/1982 (see question 1).Criminal
If the violation of personality rights constitutes an offence (eg, libel and slander), the criminal law system (and criminal judges) would be responsible for hearing such cases.Administrative
If the personality rights are infringed by a public administrative body and the violation is committed through an action that is subject to administrative law, the appropriate way to handle the dispute would be to bring contentious-administrative proceedings. Contentious-administrative judges would hold jurisdiction over the action.Employment
If the violation of the personality rights arises in an employment situation, the appropriate procedural channel for handling the action would be the proceedings provided under the Employment Procedure Act. Judges of the employment tribunals hold jurisdiction over such action.Other relevant rights
Are there other rights or laws that provide a claim based on use of a person’s name, picture, likeness or identifying characteristics?
The protection of the right to a person’s name, own image and honour, as such, is only recognised in LO 1/1982. However, the LO limits protection to the right considered as a personality right, therefore excluding protection of the patrimonial or economic aspect of the right (see question 1). Accordingly, where the commercial aspect of the right is concerned, the patrimonial aspect of a person’s name and image could be protected under other regulations (such as contractual law, trademark law or unfair competition law).
Existence of rightProtectable aspects
What aspects of a person’s identity are protectable under the right of publicity?
The right of publicity guarantees the right to honour, to personal and family privacy and to one’s own image. In particular, the right to image extends to the protection of one’s own name, voice and image.
Do individuals need to commercialise their identity to have a protectable right of publicity?
The right of publicity is considered a personal right that is inherent to the individual. Therefore, under Spanish law, individuals need not commercialise their identity to have a protectable right of publicity.Foreign citizens
May a foreign citizen protect a right of publicity under the law of your jurisdiction?
In principle, rights of publicity form part of the personal status of the individual, and, accordingly, they would be subject to the individual’s personal law as determined by nationality (article 9.1 of the Civil Code). However, the Constitution effectively guarantees the protection of rights of publicity without making a distinction between nationals and foreign citizens, and LO 1/1982 echoes this guarantee. Moreover, redress for violation of the right of publicity falls within the scope of non-contractual civil liability and is therefore subject to that specific regimen. In view of this, we are of the opinion that foreign citizens may seek relief under the provisions of LO 1/1982 as if they were Spanish 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?
The right of publicity falls under the scope of personality rights, and its protection is not subject to registration or public notice.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?
See question 14. It should be added that the protection of the right of publicity is not conditional upon the exercise of that right while the individual was alive.