Newsletter IP Law 4/2018

HOW TO USE THE IMAGE OF ANOTHER

Using the images of others is nowadays an indispensable part of doing business. Personal image can be lent not only by actors in commercials, whose profession actually entails selling their images, but also by e.g. a managerial team on a corporate website for the purposes of self-presentation, or by famous athletes in computer games.

MEANS OF PROTECTION

The image of an individual is protected by both the Civil Code and Copyright Law. The regulations concern not only a faithful mapping of someone’s facial features (photograph), but also pictures, graphics or caricature.

WHAT IS NECESSARY TO BE ALLOWED TO USE ANOTHER’S IMAGE?

A prerequisite to using the image of another person is obtaining that person’s consent. In seeking such consent you must always bear in mind several important things:

  • You cannot stipulate that such consent cannot be withdrawn;
  • Such consent cannot be transferred to another entity unless the consent itself allows for such transfer;
  • The consent should clearly specify the circumstances in which the image will be used.

Hence, although the regulations do not require that such consent be in writing, it is recommended to draft a relevant document to be signed by the person whose image you intend to use. Such consent will then typically take the form of a contract, often specifying remuneration for the image subject. Such consent will be implied where such remuneration agreed has been paid to the person in question.

WHEN IS IT NOT NECESSARY TO SEEK CONSENT?

You don’t need to seek consent to the use of image of a person that is publicly known, provided that their image was taken in relation with the public function served.  You don’t need to seek consent of every person taking part in a gathering or a publicly available event that is being photographed.

SANCTIONS FOR BREACH

The content of the consent is best consulted with a lawyer, and the very use of a person’s image – exercised with caution. For it is very easy to abuse the consent granted. And infringing another person’s right to image may not only entail publication of an apology, but also payment of damages.

 

“STYLE THEFT”?

Marvin Gaye’s family has alleged that “Blurred Lines”, a music piece recorded by Robin Thicke and Pharrell, copied in an inadmissible way “Got to Give It Up” by the famous artist.

WHAT WERE THE POSITIONS OF THE PARTIES?

Gaye’s heirs’ experts alleged that “Blurred Lines” borrowed such elements of “Got to Give It Up” as, when combined, resulted in a similarity of the works.  Without going into details of either song, they focused on the similarities between style, groove and rhythm.

Thicke and Pharrell’s experts focused on analysing detail. They argued inter alia that no two consecutive notes are identical in both songs. The elements common to both works, such as us of cow jingles, is not protected by copyright in their opinion.

WHAT WERE THE JURY AND APPELLATE COURT VERDICTS?

The jury found in favour of Marvina Gaye’s family and awarded them over USD 5m. Moreover, Thicke and Pharrell will be required to give up to them 50% of profits made from the song.

The appellate court upheld the judgment. For the appeal alleged a breach of procedure, which was not sufficient to have the jury’s decision reversed.

WHAT CONCLUSIONS CAN BE DRAWN?

Courts all around the world have already heard cases involving claimants alleging that somebody else’s song copied their work. This is exemplified by the case of a band called Verve, which forfeited its property rights to the song “Bittersweet Symphony” whose famous theme was “borrowed” from “The Last Time” by Rolling Stones. However, the “Blurred Lines” case is precedential in that the judgment was against copying the style rather than a specific element of the song.

According to many, the ruling in questions may set a dangerous precedent, which may jeopardise the freedom to create new songs, seeing that artists do not operate in a vacuum, but are always more or less inspired by existing works. The appellate court itself objected to such great importance being attached to “Blurred Lines” arguing that it was bound by the content of the appeal. The case is thus a lesson to be learnt by attorneys: always double check the allegations that can be made against a contested decision.

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