Appearances as a Human Right – Image Rights in Europe

Studiu publicat în volumul In Honorem Flavius Antoniu Baias. Aparența în drept, tomul III, Ed. Hamangiu, 2021, p. 97-103.

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„His soul swooned softly as he heard the snow falling faintly through the universe and faintly falling, like the descent of their last end, upon all the living and the dead”

James Joyce, The Dead (1914)

Star Wars fans who went to the 2016 premiere of Rogue One: A Star Wars story were confronted with several surprises^[1]: a thrilling finale, appearances by beloved characters such as Darth Vader, and cameos by well-known actors to have previously graced the series with their talents. One cameo proved to be especially intriguing: the character Moff Tarkin, played in the 1977 original by Peter Cushing, appears in several scenes, seemingly played by the same actor. Cushing had died in 1994.

The filmmakers, working with Cushing’s estate, superimposed his image onto another actor of his likeness – to an eerily accurate result which proved to be controversial^[2]. Audrey Hepburn’s appearance was used in an advertisement for chocolate in 2013^[3]. A widely-memed goodbye shot of Paul Walker in the 2015 release of Furious 7 was hailed as the emotional focal-point of the movie^[4].

Since all of these examples took place with the deceased’s estates participation, most of the controversy has been ethical, not legal – but there is no denying the “wrongness” that one feels when seeing the work done. However, multimillion-dollar litigation has arisen when fashion brands have used pictures of deceased artists on clothes without the photographer’s agreement – showing that the stakes could not be higher when things go wrong^[5] and that appearances can be costly indeed.

The art world is full of examples in which the use of a person’s appearance has proven to be problematic: Shepard Fairey’s famous OBEY Giant artwork started from a sticker campaign using Andre the Giant’s appearance and was subsequently changed facing legal pressures^[6]; while the famous photograph of Che Guevara taken by Alberto Korda, Guerrillero Heroico, is generally thought to be in the public domain, his widow has taken steps to prevent its commodification, with little success^[7]; the Andy Warhol foundation was successfully sued by a photographer accusing the artist of not making fair use of a portrait of the pop icon Prince^[8].

Appearances are just as important for the living: Cristiano Ronaldo’s earning for an Instagram post – USD 1.6m^[9] – are comparable to one month of wages compared to his new salary at Manchester United^[10]. The global influencer marketing value has doubled from 2019 to 2021 alone, bolstered by the fact that the pandemic has moved more and more of people’s lives online^[11].

Social media’s ubiquity has not come without criticism. For example, increased social media exposure during the COVID-19 pandemic has been linked to an increase in mental health problems^[12]. France has decided to adopt a special law to protect child influencers on social media, protecting their labor in a manner similar to child models or actors^[13]. In a bid to reduce unrealistic beauty standards, a new law will come into effect in Norway, mandating that posting filtered or modified pictures must be accompanied by a label which specifies that this was the case^[14].

It’s apparent, then, that social media’s proliferation, coupled with the booming technology that makes using appearances of both living and deceased people more and more accessible and a rapaciously growing influencer culture have set the scene for future litigation, which will undoubtedly have a human-rights facet as well. Appearances and image rights are poised to become the next hot topic in human rights litigation.

The heterogeneity of image rights is universal. For example, the “right of publicity” has been known in the United States as early as 1953 and has been affirmed by the Supreme Court in 1977. In 1953, the US Court of Appeals for the Second Circuit held as follows:

“We think that, in addition to and independent of that right of privacy (which in New York derives from statute), a man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture, and that such a grant may validly be made «in gross», i.e., without an accompanying transfer of a business or of anything else. Whether it be labelled a «property» right is immaterial; for here, as often elsewhere, the tag «property» simply symbolizes the fact that courts enforce a claim which has pecuniary worth.

This right might be called a «right of publicity»”^[15].

In 1977, the Supreme Court affirmed, holding that the First Amendment did not immunize a television station from liability for broadcasting an entertainer’s image without his consent^[16].

However, the right to publicity is still a state-based right, with each state determining the parameters of recognition^[17]. Some states, such as Indiana and Oklahoma provide that image rights survive for 100 years after a person’s death, while Tennessee provides for protection that never expires if use is continuous. On the other hand, Delaware, Maryland and Maine do not offer any protection at all, leaving protection to copyright and trademark statutes.

The huge economic interest of the image rights of the deceased have pushed for the adoption of statutes in many cases: for example, the 1985 Celebrities Rights Act (extending personality image rights protection to 75 years after death) was passed in California as a response to backlash to the California Supreme Court’s decision in Lugosi v. Universal Pictures, in which the court held that the late-actor’s personality rights could not pass on to his heirs^[18].

In Europe, some jurisdictions have also proven to be fertile for the protection of image rights. In France, similar rights have been protected as early as the 19^th century^[19] and have evolved to protecting images of sportsmen taken during their professional activities from unauthorized commercial use^[20].

In Germany, the Bundesgerichtshof has held, as early as 1954, that “the unauthorized publication of a portrait constitutes, as has long been recognized in legal literature, an attack on the freedom of self-determination and the free expression of the personality”^[21]. This is based on a reading of Articles 1 and 2 of the German Constitution and Section 823 of the German Civil Code, bolstered now by Article 8 of the European Convention on Human Rights. In a 1999 case^[22], the image of actress Marlene Dietrich was used to promote a musical of her life, with her daughter suing for damages for infringement to personality rights. The German Federal Supreme court decided in her favor, confirming posthumous protection of personality rights:

“The components of the right of personality which are of financial value remain after the death of the holder of the right of personality, at any rate as long as the non-material interests are still protected. The corresponding powers pass to the heir of the holder of the personality right and can be exercised by him in accordance with the express or presumed will of the deceased”^[23].

Spain, for example, is another European State very protective of Personality and Image Rights. Special protection of Personality Rights exists for celebrities under an organic law, which permits individuals to revoke consent to use of their image in order to protect their rights to privacy and dignity, whereas image rights are considered to be inheritable, allowing relatives who were alive and present during the deceased’s lifetime to enforce the posthumous rights^[24].

To contrast, English law offers no special protection to an individual’s image, with legal protection for personal and commercial use of one’s image left to tort law^[25]. For example, the tort of Passing Off has been offered as an alternative to true image rights or right to publicity protection, since it gives the plaintiff action if unauthorized reproduction seems to imply a fake endorsement on his behalf^[26]. Moreover, traditionally, in common law, such rights do not survive the deceased person., with plaintiffs usually invoking their own rights’ violation when defamation of the deceased has taken place^[27]. The UK’s reticence to grant such protection can be explained to its traditionally strong freedom of expression protection – a protection sometimes fiercely protected by interested parties in the media^[28].

Turning to the European Court of Human Right’s case law, it does not mention Image Rights or the Right to Publicity as such, circumscribing them to the right to privacy as safeguarded by Article 8 of the Convention. For example, in Nikolaishvili, it held that “the publication of a photograph, without the consent of its owner, even if this act is devoid of any specific aim, constitutes an interference under Article 8 of the Convention”^[29]. The European Court of Human Rights has expressly linked the protection of a person’s appearance or image to its personal development, holding that applicants can object to the mere taking of a photograph concerning them, without any publication needing to take place for an interference to exist^[30].

The European Court’s Grand Chamber has subsequently affirmed this point of view in Von Hannover No. 2, finding that “the right to the protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof”^[31]. One sees that the privacy credentials of image rights are exceptionally strong under the European Court’s case law, although not absolute.

The point of view taken must be nuanced, since further cases have shown that, if the publication of the image can contribute to a debate of general interest^[32]. Moreover, the Court’s case law seems not to support an energic protection of a deceased person’s image, when a certain use of it is alleged to have violated his descendants’ rights under Article 8 of the Convention^[33]. Truly, the case of Vorsina is exceptionally specific as to the facts, and the descendants were especially removed by generations from the deceased – this case certainly does not exclude that applicants could be granted such protection, especially given the continental tradition mentioned above.

But the European Court of Human Rights’ case law may be behind the times when looked at from the perspective of the immense value that the appearance of famous people in general and influencers specifically is concerned. As mentioned, one’s appearance can be incredibly lucrative, if marketed in the right way – a fact which is equally true for both the living and the deceased. In other words, while the Court’s case law is an exceptional shield to protect one’s image rights, commercial use may not be protected with the same intensity.

If copyright still exists for the image that depicts a deceased person, it undoubtedly is protected by Article 1 of Additional Protocol No. 1 to the Convention^[34]. The financial interests that surround one’s appearance may warrant protection regardless of qualifying said interests as intellectual property, since they are of definite economic value. Paradoxically, if applicants were to espouse protection under Article 1 of Additional Protocol No. 1 in order to protect their appearance, they would encounter a much wider margin of appreciation of the national authorities, especially when freedom of expression is at stake^[35].

Consequently, laws such as the one adopted in Norway, which effectively limit the way influencers can use their appearance have a real chance of standing the Court’s scrutiny, especially since a reasonable public interest is espoused as a reason to limit the use of one’s appearance. The Court’s energic case law on protection of one’s image rights as privacy seems ill-suited to such claims – there is little to no privacy involved when one voluntarily posts images for commercial gain.

Appearances of deceased individuals are even more problematic: if the connection to the descendants isn’t particularly clear, as Vorsina^[36] shows, it’s unlikely that their right to privacy could be breached through the use of the deceased image. One can imagine particularly egregious examples, where the deceased could be used to sponsor products in clear violation of their values while alive, but the advertising industry is shrewder than this. If no specific image right protection exists and copyright or trademarks are of no use, it seems that descendants would have little in the way of showing that such use would violate their “possessions”, since they would face the daunting task of proving that such a “possession” exists.

Where rights to the deceased person’s appearance specifically exist pursuant to domestic law, authors have recommended that provisions be put in place to stop unauthorized use of the deceased’s appearance^[37]. Certainly, if those image rights exist, lucrative arrangements can be reached with the deceased’s estate – whether in poor taste or with lavish attention to the deceased’s wishes. If, on the other hand, the descendants are not the owners of the deceased’s image rights, litigation can ensue. It is up to the courts, national or international, to determine where the fair balance lies and to distinguish between the degree of protection that a deceased person’s appearance has, when compared to the living^[38]. The recent pandemic has only shown that one’s online persona is just as important as the offline, and sometimes much more lucrative. Appearances of both the living and the deceased can be used with more and more ease, for bigger profits than ever before. As philosopher John Berger noted, “We only see what we look at. To look is an act of choice […] Soon after we cansee, we are aware that we can also be seen”^[39]. While human rights law in Europe has provided for ample protection of one’s appearance, electing to use it commercially may dilute this protection. If one elects to be seen as an influencer, special precautions may be imposed by the state. If a deceased’s image is used contrary to what would be dignified, this use may run contrary to its descendant’s right to privacy. Where public interest and issues of dignity are at stake, the use of a person’s appearance, whether living or deceased, will carry a special significance. As Joyce’s blanket of snow, human rights law is ever present for both the living and the dead.

Footnotes

^[1]  G. Edwards, Rogue One: A Star Wars Story (Walt Disney Studios Motion Pictures 2016).

^[2] A. Pulver, Rogue One VFX Head: “We Didn’t Do Anything Peter Cushing Would’ve Objected to”, in The Guardian, 16 January 2017, http://www.theguardian.com/film/2017/jan/16/rogue-one-vfx-jon-knoll-peter-cushing-ethics-of-digital-resurrections, accessed 2 September 2021.

^[3] A. Toor, Astonishingly Real Audrey Hepburn Shills Chocolate in New Commercial, in The Verge, 28 February 2013, https://www.theverge.com/2013/2/28/4039144/audrey-hepburn-resurrected-for-galaxy-chocolate-commercial, accessed 2 September 2021.

^[4] S. Highfill, How “Furious 7” Said Goodbye to Paul Walker, EW.com, 2015, https://ew.com/article/2015/04/03/furious-7-paul-walker-goodbye/, accessed 2 September 2021.

^[5] Forever 21, Urban Outfitters Slapped with Nearly $1 Million Suit Over Tupac Imagery, in The Fashion Law, 6 March 2017, https://www.thefashionlaw.com/forever-21-urban-outfitters-slapped-with-nearly-1-million-suit-over-tupac-imagery, accessed 2 September 2021.

^[6] B. Schulte, Obey Giant: The Mandate That Grabbed a Generation, in Washington Post, 8 September 2002, https://www.washingtonpost.com/archive/lifestyle/2002/08/09/obey-giant-the-mandate-that-grabbed-a-generation/d20460fc-e110-4e39-8ba4-69c09cd44686/, accessed 2 September 2021.

^[7] Che’s Family Plans to Fight Use of Famed Photo, 9 August 2009, https://web.archive.org/web/20090908021815/ http://www.commondreams.org/cgi-bin/print.cgi?file=%2Fheadlines05%2F0829-01.htm, accessed 2 September 2021.

^[8] A. Greenberger, Court Delivers Blow to Warhol Foundation in Fair Use Appeal Over Prince Portraits, ARTnews.com, 26 March 2021, https://www.artnews.com/art-news/news/andy-warhol-prince-lynn-goldsmith-appeal-decision-1234587961/, accessed 2 September 2021.

^[9] M. Sweney, Cristiano Ronaldo Shoots to Top of Instagram Rich List, in The Guardian, 30 June 2021, http://www.theguardian.com/technology/2021/jun/30/cristiano-ronaldo-shoots-to-top-of-instagram-rich-list, accessed 2 September 2021.

^[10] A. Rai, Cristiano Ronaldo Takes Multi-Million Pay Cut to Re-Join Man United, We All Follow United | Man Utd Fan Blog |, 30 August 2021, https://weallfollowunited.com/2021/08/30/cristiano-ronaldo-wages-transfer-news-manchester-united-salary-pay-cut/, accessed 2 September 2021.

^[11] Global Influencer Market Size 2021, Statista, 2021, https://www.statista.com/statistics/1092819/global-influencer-market-size/, accessed 2 September 2021.

^[12] J. Gao and others, Mental Health Problems and Social Media Exposure during COVID-19 Outbreak, (2020) 15 PLOS ONE e0231924.

^[13] See Loi n° 2020-1266 du 19 octobre 2020 visant à encadrer l’exploitation commerciale de l’image d’enfants de moins de seize ans sur les plateformes en ligne, JORF n° 0255 du 20 octobre 2020.

^[14] Influencers React to Norway Photo Edit Law: “Welcome Honesty” or a “Shortcut”?, BBC News, 7 June 2021, https://www.bbc.com/news/newsbeat-57721080, accessed 2 September 2021.

^[15] Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc, 202 F.2d 866 (2d Cir. 1953).

^[16] Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977).

^[17] Right Of Publicity Statutes & Interactive Map (no date), https://rightofpublicity.com/statutes, accessed 2 September 2021.

^[18] Lugosi v. Universal Pictures, 603 P.2d 425 (Cal. 1979).

^[19] W.J. Wagner, The Right To One’s Own Likeness in French Law (1970), in 46 Indiana Law Journal 1, 4.

^[20] H. Beverley-Smith and others, Privacy, Property and Personality Civil Law Perspectives on Commercial Appropriation, Cambridge University Press, 2005, 178 citing the Fignon, Platini and Cantona cases.

^[21] Bundesgerichtshof (First Civil Division) 14 February 1958, BGHZ 26, 349 = NJW 58, 827.

^[22] Marlene Dietrich Case BGH 1 ZR 49/97, 1 December 1999.

^[23] See the translation at ‘German Case | Foreign Law Translations | Texas Law’ (no date), https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=726, accessed 3 September 2021.

^[24] If no heirs exist, these rights can be exercised by the Ministry of Justice for 80 years, a very interesting compromise. See A.C. Heugas, Protecting Image Rights in the Face of Digitalization: A United States and European Analysis, 2021, The Journal of World Intellectual Property 1, 14.

^[25] T. Synodinou, Image Right and Copyright Law in Europe: Divergences and Convergences, 2014, 3 Laws 181, 186.

^[26] Heugas (n 24) 15.

^[27] Idem, 5.

^[28] See, for example, the Media Lawyer’s Association’s submissions to intervene in the ECtHR cases of Von Hannover and Springer, at https://inforrm.org/wp-content/uploads/2010/09/mla-submission.pdf, accessed 2 September 2021.

^[29] Giorgi Nikolaishvili v. Georgia [Judgment – Merits and Just Satisfaction] No. 37048/04, parag. 121 (European Court of Human Rights 13 January 2009).

^[30] Reklos and Davourlis v. Greece [Judgment – Merits and Just Satisfaction] No. 1234/05, parag. 40 (European Court of Human Rights 15 January 2009).

^[31] Von Hannover v. Germany (No. 2) [Grand Chamber] [Judgment – Merits and Just Satisfaction] No. 40660/08; 60614/08, parag. 96 (Commission on Human Rights 7 February 2012).

^[32] Von Hannover v. Germany (No. 3) [Judgment – Merits and Just Satisfaction] No. 8772/10, paras 41–58 (European Court of Human Rights 19 September 2013).

^[33] Vorsina and Vogralik v. Russia [Decision] No. 66801/01 (European Court of Human Rights 5 February 2004).

^[34] See the landmark judgment in Anheuser-Busch Inc v. Portugal [Grand Chamber] [Judgment – Merits and Just Satisfaction] No. 73049/01, parag. 72 (European Court of Human Rights 11 January 2007).

^[35] Ashby Donald and Others v. France [Judgment – Merits and Just Satisfaction] No. 36769/08, parag. 40 (European Court of Human Rights 10 January 2013).

^[36] Vorsina and Vogralik v. Russia [Decision] (n. 32).

^[37] S. Flynn Smith, If It Looks Like Tupac, Walks Like Tupac, and Raps Like Tupac, It’s Probably Tupac: Virtual Cloning and Postmortem Right-of-Publicity Implications, 2013, Michigan State Law Review 1719, 1761.

^[38] Heugas (n 24) 24.

^[39] J. Berger, Ways of Seeing, BBC and Penguin Books, 1972, p. 8-9.