On March 9, 2021, the Supreme Court handed down a new judgment resolving the appeal of an advertising model against the company that had contracted her image and continued to exploit it after the end of the contract, reaffirming the distinction between the fundamental right to one’s own image and its mere financial aspect or content.
The dispute dates back to 2013, when the model took part in an advertising session for Ron Negrita, assigning her image to the company that owns the well-known alcoholic beverage. The agreement signed between the model’s agent and the advertising company contracted by that company involved taking photographs to be used on Ron Negrita’s website, as well as on advertising posters and magazines for one year. However, after the agreement had expired, the model’s image was used again, without her consent, for a Ron Negrita and Coca-Cola advertising campaign.
The model then filed a claim against the owners of both products for infringement of her right to her own image, in the modality of image appropriation for advertising or commercial purposes, as provided in section 7(6) of Spanish Act 1/1982 on Civil Protection of the Right to Honor, Personal and Family Privacy, and One’s Own Image.
The first-instance judgment and then the Provincial Court of Appeals of Barcelona dismissed the claimant’s submissions. In summary, the Court of Appeals upheld that, in line with the position taken by the Supreme Court and the Constitutional Court, if an image whose use has been legally authorized is used outside the protection of the contract, a breach of contract will have occurred, but there will be no infringement of the constitutionally protected right to one’s own image.
The claimant then filed an appeal in cassation claiming infringement of sections 7(6) and 9(2)(c) of Spanish Act 1/1982, arguing that the use of the image outside the context of the authorization agreement constitutes an infringement of the right to one’s own image.
To resolve this appeal, on a preliminary basis, the Supreme Court reminded that, along with the constitutionally protected aspect (section 18 of the Spanish Constitution), there is also a financial right under which one’s image can be negotiated and marketed. In fact, this distinction between the fundamental right and its mere financial aspect or content has been accepted and established as Constitutional Court opinion and Supreme Court caselaw.
The Supreme Court essentially points out that “the use of the image for advertising and commercial purposes is subject to the requirements of Spanish Act 1/1982, so that the person’s consent is required and can be revoked, and the harm caused compensated. Therefore, when the commercial exploitation has taken place without the person’s consent, either because it has not been given or because it has been revoked, an infringement can be determined because it is the person who has the decision on the exploitation of the image.” That being said, the Supreme Court clarifies that, “in cases in which the person has assigned the exploitation of image rights under an agreement and for advertising purposes, such that the image is the object of the agreement, under Spanish Act 1/1982, the content of the agreement and its interpretation must be followed.”
Ultimately, when a person has granted consent for the use of his or her image, and what is disputed is additional compensation for use exceeding the agreement, the issue is not infringement of a personality right but the consideration or compensation for breach of contract, a purely economic aspect of the exploitation of image rights that is not protected by fundamental rights.
Authors: Carolina Urbano and Jean-Yves Teindas