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Image right and advertisement

  • 26 May 2015
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Image Right or Property Right, is that by which every person may dispose of its own appearance, authorizing or not, the capture or diffusion of said one. In this case, we will review its use in the advertising subject as well as some contractual recommendations.
As mentioned before, Image Right grants the faculty by which every person will be able to authorize or not the use of its own appearance or image, being important to define what does image or appearance means as the identifiable reproduction of the physical features of a person on any supporting material. The above has been verified and pointed by the Civil Liability Law for Protection of the Private Life, Honor and Image Right in the Mexican Federal District, which includes also the voice and the name of a person as elements of its own image; notwithstanding the above, it still looks like a really abstract and barely possible to exemplify at a first glance, however, is in advertising where we found it very useful and related to some IP Rights.

Advertising in Mexico is defined as the activity that covers creation, planning, execution and diffusion of commercial advertisements in media in order to promote the selling or consumption of goods and services. In this regard, professionals and creatives on this subject, create TV Ads, Radio Ads, banner Ads or Internet Ads using the image of models, actors, singers, athletes, among others.

It is worth to set forth a clear example of the use of the image in a TV Ad in order that we can explain later some of the necessary clauses for the proper protection of all the involved: TV Ad, announcing a soda brand which uses a famous soccer player and a kid for promoting sports.

Regarding the above-mentioned example, we can review some of the concepts that must be analyzed and agreed before the TV Ad recording and particularly before the Ad release on TV, for example: The contract with the soccer player must be clear on the advertising object as well as where and how it is going to be transmitted, the editing rights on the advertisement, the consent for using said player’s image, the time limits in which will be authorized the use of said image and more important, the compensation given to the soccer player for the use of his image, as well as who hired him (could be an advertising agency or the advertiser), the trademark clauses and the exclusivity, if applicable. In relation with the clauses for the Kid’s contract, we should pay attention on the consent for his image use, which should provide the Kid’s parents, due to the lack of legal capacity of the Kid for signing a contract.

We can finally conclude that Image Right is one additional element that we must take care of and respect in the promotion of our trademarks in relation to Advertising, in order to comply with the applicable legal framework.

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