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Sources of law

Right of publicity

Is the right of publicity recognised?

Publicity, the right or ability to be or not to be public, is recognised in article 16 of the Mexican Federal Constitution in terms of the interpretation of the fundamental right of privacy, and as a limitation to the freedom of speech and expression right foreseen in articles 6 and 7. In this context, anyone in Mexico has the ability to decide to be publicly known or not, and the right to sue for indemnification against those people who have unlawfully affected privacy rights of others by communicating their image in the general media without proper authorisation or by affecting their moral rights and reputation for using their image or name inappropriately.

Principal legal sources

What are the principal legal sources for the right of publicity?

At a federal level, the principal legal sources for the right of publicity are:

  • the Federal Constitution;
  • the Federal Civil Code;
  • the Industrial Property Law; and
  • the Federal Copyright Law.

At a local level, local civil codes are applicable for an action to claim damages for a publicity right violation and the Law on Civil Liability for the Protection of Private Life, Honour and Self-Image (LCLP) is applicable for matters taking place in Mexico City.

Enforcement

How is the right enforced? Which courts have jurisdiction?

Concerning an infringement of rights of the portrait of an individual, the competent authority to settle this matter will be the Mexican Institute of Intellectual Property (MIIP). This institute is a federal agency in charge of administering the industrial property right system in Mexico, however, as part of its functions, it is also the administrative authority in charge of punishing conducts affecting copyrights and related figures (among which image rights are included), when the conducts have a commercial impact.

A civil action to claim for damages against a publicity right violation can be exercised before a federal or local civil judge at the election of the claimant.

Regarding actions based on the LCLP, they have to be exercised before a Mexico City local civil judge.

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 name and signature of an individual can be a trade or service mark and it is possible to obtain its registration before the MIIP to obtain the right for its exclusive use to distinguish products or services in Mexican commerce.

The protection of the portrait of an individual, the right to authorise its use by others and the infringement cause if it is used without proper authorisation are foreseen by the Federal Copyright Law.

Article 1916 of the Federal Civil Code foresees the concept of moral damage as an injury or harm a person suffers in feelings, affections, beliefs, dignity, honour, reputation, private life, physical or public perception. The remedy for a moral damage consists of an economic indemnification, which a civil judge in charge of the case will determine by assessing the degree of damage caused to the injured party. Apart from the economic compensation, the affected party can request the judge to order the liable person to publish an extract of the final resolution declaring the existence of the moral damage. This publication must be made through the same media and to the same extent as that used by the liable party to cause the moral damage. In the case of Mexico City, a relevant local law entered into force in 2006: the LCLP. The LCLP abolishes the provisions regarding publicity, image protection and moral damage that were formerly included in the local Civil and Criminal Codes, introduces the concept of moral patrimony as the intangible personality assets of an individual and provides protection and causes of action when the right of publicity of individuals is infringed.

Existence of right

Protectable aspects

What aspects of a person’s identity are protectable under the right of publicity?

It may seem that publicity and image rights are exclusive to individuals, since these rights are mostly in line with the use of the name, likeness and signature of an individual. However, a company will also have the right of publicity in terms of the entitlement to authorise or take commercial advantage through a public disclosure of its name and associated images of its premises, trademarks or products, and to oppose to such a disclosure and sue for indemnification when someone affects its reputation. In view of this, companies are also entitled to hold the right of publicity and to enforce such a right when it has been infringed.

The exercise of the right of publicity and image rights of a company takes place:

  • when it allows its name or its perception as a legal entity, through images displaying its trademarks, premises, products or the form in which services are rendered by it, to be publicly disclosed in any media, whether by performing advertising activities or not; and
  • when it enforces rights arguing the existence of a moral damage when a public expression of ideas harms its goodwill or public perception.

Concerning this subject, there are some relevant judicial precedents in which federal circuit courts have ruled that companies have rights to claim moral damages when they suffer harm or injury in their reputation and goodwill through a public expression that was unlawfully issued. These precedents do not constitute formal jurisprudence to be compulsorily followed by other courts to settle similar matters. However, they reflect a relevant court opinion to be taken into account in considering provisions regarding moral damages that are applicable to companies.

Do individuals need to commercialise their identity to have a protectable right of publicity?

No. Commercialisation is not a requisite for enforcing the right of publicity.

Foreign citizens

May a foreign citizen protect a right of publicity under the law of your jurisdiction?

Yes. Foreign citizens have protectable right of publicity in Mexico.

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 is not required for protection of the right of publicity, although in certain circumstances, such as enforcing trademark rights, registration of the name, portrait or signature as a mark before the MIIP will be required if the action is to be supported on the existence of a trade or service mark registration.

A public notice is not required for protection of the right of publicity in Mexico.

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?

The right of publicity over a portrait is protected during the life of the owner and 50 more years after his or her death (the term will start running as of the first day of January of year following to the date of the owner’s death).

In the matter of trademarks, if the name or signature has been registered as a trade or service mark, rights can be renewed on a 10-year continuous basis, provided that the mark is in effective use in Mexico.

In matters of an action to claim for moral damages, the action has to be exercised when the owner is alive. Heirs of a right owner can continue the proceedings until a final conclusion and can benefit from the recovered amounts.

Ownership of right

Transferring

Can the right be transferred? In what circumstances?

Regarding the portrait of an individual, the right of publicity can be transferred through agreement or, post mortem, by will or by intestate succession, including the right to enforce this right by parties different from the owner.

The right to bring actions to claim moral damages is non-transferable through an agreement.

If the name or the signature of a person were protected through a trademark registration, the rights derived from the trademarks can also be transferred through an agreement or, post mortem, by will or by intestate succession.

It is important to note that according to the LCLP, in the case of Mexico City, personality rights such as the image or likeness of a person are inalienable; in other words, it is not possible to transfer any of the personality rights.

Licensing

Can the right be licensed? In what circumstances?

The portrait of an individual can be licensed, as can the name or signature of a person if they have been protected through trademarks.

The right owner may grant exclusive or non-exclusive licences for use of his or her portrait, name or signature.

Infringement

If the right is sold or licensed, who may sue for infringement?

The assignee or the licensee shall, unless otherwise stipulated by an agreement, be empowered to sue for infringement of the corresponding right of publicity.

Post-mortem rights

If post-mortem rights are recognised, are they limited to natural heirs or can they be enforced under a contract by an assignee or left to an entity?

According to Mexican law, post-mortem rights are recognised regarding the portrait of an individual and they are assigned to the heirs of the right owner designated in his or her will or by intestate succession:

  • in the event the owner had assigned his or her rights for the use of his image or portrait to an assignee in advance to his passing, the assignee will continue holding this right after the owner’s death and will have the legal capability to take enforcement actions against infringers; and
  • in trademark matters, the Industrial Property Law foresees that the image, name, portrait or signature of an individual that has passed away are transferred to his or her heirs and therefore the heirs are the ones entitled to authorise the use of the mentioned elements to other parties.

Recommended actions

Are there any actions that rights owners should take to ensure their rights are fully protected?

No registration or previous action is required to protect or enforce publicity rights.

Infringement

Right infringement

What constitutes infringement of the right?

As a general rule, the right of publicity is violated when someone uses the name or portrait of another individual or the name of a company without having proper authorisation to do so, either with commercial purposes or with the intention to affect the honour or reputation of the concerned individual or company.

Excluded formats

Are certain formats of intellectual property excluded from claims based on the right of publicity? What is the legal basis of the exclusions?

As a general rule, any use of a person’s image, in any format, needs previous and express consent. However, a person’s image and name can be used in exercise of the freedom of speech right, or for informational or journalistic purposes, provided that there is no harm in the person’s dignity or reputation.

Infringement claim requirements

Is knowledge or intent to violate the right necessary for a finding of infringement?

Even if the infringer has no direct intent to violate the right, if the conduct, per se, infringes the individual’s right of publicity, the affected party will be entitled to exercise enforcement actions against the infringer.

Liability of media

Does liability extend to media publishing content created by an advertiser and website operators publishing posts by third parties? Does republishing or retweeting or other social media propagation of existing content give rise to liability?

Yes. Lability extends to media and website operators as well as persons or entities republishing contents violating publicity rights. Liability raises through the action of making public the infringing materials, independently they were created by other people or if they are taken from another source for their republishing.

Remedies

Available remedies

What remedies are available to an owner of the right of publicity against an infringer? Are monetary damages available?

Monetary damages can be claimed on grounds of a right of publicity infringement.

For those cases affecting honour and reputation, it is also possible for the affected party to request the publication of an extract of the final resolution declaring the existence of the infringement. The publication must be made through the same media and with the same diffusion as the publication that carried the materials used by the infringing party to cause the harm.

Time limits

Is there a time limit for seeking remedies?

As a general rule, the action to claim monetary remedies precludes two years as of the date when the infringement took place. Initiation of judicial or administrative actions stops preclusion.

Attorneys' fees

Are attorneys’ fees and costs available? In what circumstances?

The prevailing party is entitled to claim attorneys’ fees and costs of the proceedings. It is necessary to provide proof of these expenses and the decision about the final sum to be awarded is left to the judge’s discretion.

Punitive damages

Are punitive damages available? If so, under what conditions?

No. The Mexican legal system does not recognise punitive damages.

Preliminary relief

Is preliminary relief available? If so, what preliminary measures are available and under what conditions?

Preliminary injunctions are not foreseen in the Mexican legal system. However, it is possible to request the adoption of provisional measures ahead of an image or portrait infringement.

Depending on the level of the infringement, these measures can be the seizure of presumable infringing materials, which is the usual measure, the forced closure of the commercial establishment in which the infringement has allegedly been caused and arrest of the individuals whose actions have allegedly been causing the infringement.

A bond to guarantee damages is a requisite for the adoption of provisional measures.

Damages measures

What are the measures of damages?

The sum of moral damages is determined by the judge in light of the specific circumstances of the case and the proof provided by the parties involved.

In the case of an unauthorised use of the portrait of an individual and by express provision in the Federal Copyright Law, damages cannot be less than 40 per cent of the sale price of the materials through which the infringement has been caused.

In the case of the LCLP, the maximum amount of damages that can be claimed for infringements against moral patrimony is 350 Units of Measure and Update (UMA). UMA substitutes references in Mexican federal and local laws made in connection to the daily minimum wage in Mexico City, which was previously taken as the economic value for calculating fines and other economic obligations foreseen in the law. In 2018, one UMA was equivalent to 80.60 pesos.

Significant case law

What significant judgments have recently been awarded for infringement of the right?

Although not strictly related to infringement actions, there are two relevant court decisions recently ruled by the Mexican Supreme Court in matters of publicity rights:

  • a decision from the Second Courtroom of the Mexican Supreme Court under reference number 2011891 of 27 April 2016 declares the constitutionality and therefore the validity of image right protection as foreseen in the Federal Copyright Law. In this decision, the Supreme Court considered that image rights can have double protection in Mexico, either on the intellectual property law field and on the civil law field, being both complementary to each other; and
  • another decision from the Second Courtroom of the Mexican Supreme Court under reference number 2011892 of 27 April 2016 determines that image rights should be taken as part of identity rights of an individual and confirms that everyone in Mexico has the constitutional right to freely determine how his or her image is presented to the public.

Litigation

Relevant fora

In what forum are right of publicity infringement proceedings held?

If the action is related to the unauthorised use of the portrait of a person, according to the Federal Copyright Law, the claim must be filed before the MIIP, which is the competent authority in this matter pertaining to the executive power, and therefore, is not a judicial but an administrative authority.

A civil action to claim for damages against a publicity right violation can be exercised before a federal or local civil judge at the election of the claimant.

Regarding actions based on the LCLP, they have to be exercised before a Mexico City’s local civil judge.

Use of juries

Are disputes decided by a judge or a jury? Are damages determined by a judge or a jury?

The jury system is not in use in Mexico in matters of publicity rights. Infringement, including the dispute resolution and damages quantification of the right of publicity, is settled by the MIIP, a federal civil court or, in the case of Mexico City, a local civil court.

Applicable law

How is the choice of applicable law determined?

The Federal Copyright Law and the Industrial Property Law are the applicable laws for the resolution of infringements of the right of publicity regulated by these laws, regardless of the place of infringement or domicile of the claimant.

Regarding civil actions to claim damages, the jurisdiction and applicable law, which in this case would be the applicable local civil code, will be chosen on the basis of the place where the infringement took place.

Consideration of foreign decisions

To what extent are courts willing to consider, or bound by, the opinions of other national or foreign courts that have handed down decisions in similar cases?

Mexican courts do not take into account opinions or decisions of foreign courts for similar cases.

It is compulsory to observe national court decisions only if they constitute jurisprudence. In Mexico, the term ‘jurisprudence’, apart from its meaning as the study of the philosophic principles of the law, also refers to the relevant decisions of certain courts complying with formal requisites that constitute a secondary source of law (the principal source of law is written statutory legislation) and it establishes the criteria to be followed by federal courts and judges to rule upon matters of the same nature.

Not all court decisions form jurisprudence. They must come from the Supreme Court of Mexico, the federal circuit courts, the Federal Court of Tax and Administrative Affairs or the Federal Electoral Tribunal.

As a general rule, for the Supreme Court or federal circuit courts, five final and continuous decisions in the same sense are required to form jurisprudence. In the case of the Federal Court of Tax and Administrative Affairs or the Federal Electoral Tribunal, three final and continuous decisions are required.

Jurisprudence does not operate automatically. Once the decisions in the same sense are in place, to be taken as formal legal criteria to be observed by other federal courts, they must be approved by the Supreme Court justices or by the judges of the other courts where they originate.

Appeals

What avenues of appeal are available in main proceedings or preliminary injunction proceedings? Under what conditions?

It is possible to challenge the adoption of provisional measures through the exercise of a juicio de amparo, which is a proceeding before federal judges or courts to analyse the legality or constitutionality of acts or decisions that originated from administrative or other judicial authorities.

To appeal against a final resolution issued by the MIIP declaring an infringement for unauthorised use of an individual’s portrait, it is possible to exercise an administrative appeal before the same institute or a nullity petition before the Federal Court of Fiscal and Administrative Affairs (CFAA). The decision of a nullity petition of the CFAA can be challenged before a federal circuit court through a amparo, which, as indicated, will only be reviewing the legality or constitutionality of the decision.

For civil proceedings, a first-instance decision can be challenged before a superior court and the decision of this court can be challenged before a Federal Circuit Court through a juicio de amparo.

Average cost and time frame

What is the average cost and time frame for a first-instance decision, for a preliminary injunction, and for appeal proceedings?

Costs for these proceedings are variable and contingent. A standard tariff or guideline applicable to all professionals in Mexico who handle these kinds of matters does not exist. Professional fees vary from firm to firm.

Each case will be examined in view of its complexity to determine the amount of fees and foreseeable expenses to be disbursed.

The average time for obtaining a first-instance decision is approximately 18 months as of the date of filing the action. For obtaining a decision at the first level of appeal, the average time is a year, plus one additional year for obtaining a decision in a juicio de amparo proceeding.