Transcript USE OF CELEBRITIES IN ADVERTISING

Use of Celebrities
in Advertising
Uri Weinstok
Weinstok Abogados
Costa Rica
[email protected]
www.weinstok.co.cr
Right to Use One’s
Personal Image
Basic principle
• A person’s image can’t be used without
consent
• Main exception: Police, scientific or
academic purposes; facts occurred in
public, uses based on public interest.
• All exceptions must be interpreted
restrictively.
• Exception DOES NOT apply to commercial
use.
"With Ryanair, all my family
can come to the wedding."
• Even though it is a widely accepted
principle, there are some sides to it.
• Regulations and case law in Latin
America is not abundant, but still some
basic principles can be identified.
“Very personal” right
(Personalísimo)
• Enjoyed by everyone
• Outside commerce (can’t be transferred)
• Do not expire
• Enjoy benefit of the doubt
• Consent is always revocable (provided
that damages are paid)
Person must be recognizable
• If the person is not identifiable,
he/she can’t complain against
unauthorized use
• One’s personal image is not affected
Librería Internacional
Limits to given consent
• An authorization for certain uses does
not necessarily imply other uses.
– Different media (press vs. Internet)
– Later uses
– Team sponsorships vs. Image of players
Paulo Wanchope v. Taca - 2001
Cristal 2004
Advertising must be truthful…
…But sometimes telling the truth is
not enough…
Franklin Chang – TLC
Use of the Image
of the Deceased
Dr. Martens Footwear
• OK in the UK
• Got in trouble when
published in a US
based website
• Agency was fired
over ad
Being a very personal right, it
would normally end upon death
• BUT:
– Image of the deceased must be used with
respect
– In some countries (in LA), Copyright laws
give some rights to the descendants for a
limited time
(even when someone’s portrait is not a
creation of his intellect)
– This is one of the issues where Laws in
different places vary significantly
Namesakes & Look-alikes
A violation can occur even when a
person’s portrait is not used
Oscar Arias and CAFTA
Relation with Copyrights
Rights over a picture vs. Image rights
Rights over fictional characters
Virgin Mobile – 2007
Grosby Shoes
Trademarks & Image Rights
•Sometimes a person’s
image gives distinctive
character to a product
and becomes a
trademark.
•In these cases, the
scope of protection is
wider
Frank Perdue
Other Relevant Issues with
Use of Celebrities
Scandals
• Use of competing
products
• Change of
circumstances
(retirement,
injury, etc.)
• Bad press
No matter what Laws apply
• Ensure rights in writing. Do not rely on
presumed verbal consent.
• Contracts may solve most issues
described.
• If it works somewhere, it will not
necessarily work everywhere.
THANK YOU!
Uri Weinstok
Weinstok Abogados
Costa Rica
[email protected]
www.weinstok.co.cr