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Personality rights in MexicoPersonality rights are recognised in a manner different from other jurisdictions so far studied. The right of publicity, including a portrait but also other characteristics, was protected by legislation in the 1990’s, most notably because of its economic nature. The right of privacy remains uncodified.
The United Mexican States Constitution includes chapters about copyright, for example, article 28. But it also allowed the Congress of the Union to enact legislation about the remainder of its framework. Therefore, la Ley Federal del Derecho de Autor (i.e. the Copyright Act) published in the Diario Oficial de la Federación (i.e. the Federal Official Gazette) on 24 December 1996 regulated in more details copyright matters. Surprisingly, this act also contains certain rules regarding rights of publicity and personality and includes them into the scope of federal matters.
For portraits, article 87 of the law requires that consent should be obtained prior to any publication.
Secondly, article 188 makes the use of other characteristics also subject to authorisation:
In accordance with the consensual system of the Mexican law, there are no requirements as to the form of a valid consent. However, the Reglamento de la Ley Federal del Derecho de Autor (Regulation of the Copyright Act, the aim being to clarify certain terms of the Act) establishes that “the entry into the registry of a photograph containing an image of a person does not stand in lieu of the consent established by the Act”. Therefore, an express consent is required.
In addition to the recognition of someone’s rights over his personal characteristics, the commercial aspects of portrait rights have been largely taken into consideration. If consent is widely required, article 87 §2 nonetheless creates a presumption that whenever a model has received financial compensation for the taking of his/her picture, then s/he has consented to its publication and cannot thereafter change his/her mind: Cuando a cambio de una remuneración, una persona se dejare retratar, se presume que ha otorgado el consentimiento a que se refiere el párrafo anterior y no tendrá derecho a revocarlo, siempre que se utilice en los términos y para los fines pactados. A person that allows his portrait to be taken in exchange for a compensation, is presumed to have granted the consent referred in the preceding paragraph and shall have no right to revoke it, in so far as such use is within the use and terms agreed. Further on, article 231 expressly declares that unauthorised publication for lucrative purposes amounts to “infringement of a commercial nature”:
The general obligation to obtain consent is however subject to some limitations set out in article 87 §3. The first one is the case where a person is visible on a photograph, but is not the central attention of the picture, the second is when the photograph is taken in a public place and is afterwards used for the purpose of reporting current events: No será necesario el consentimiento a que se refiere este artículo cuando se trate del retrato de una persona que forme parte menor de un conjunto o la fotografía sea tomada en un lugar público y con fines informativos o periodísticos. The consent referred in this article shall not be necessary in the event of a portrait of a person that constitutes a minor part of a complex or the photograph is taken in a public place and with informational or journalistic purposes. a) Freedom of the press One can here recognise the limits already seen in other jurisdictions, like incidental inclusion and more importantly, the usual conflict with freedom of speech and of the press. However, article 231, sub. II still applies, therefore this exceptional non-consensual use is restricted to non-commercial context. Consequently, problems of interpretation may arise, since what is non-commercial has not been determined, and may often be detrimental to press publications. Freedom of speech should also enable anyone to parody or satirise a public figure, a situation that mostly happens without such person’s consent. However, the legislation is silent about it, and “informational or journalistic purposes” have not been so far interpreted to include such acts, which probably induces one to think that it is not allowed. A famous outstanding exception however has been the depiction of the Mexican President, Vicente Fox, by comedian Andrés Bustamante, “El Güiri-Güiri”, who actually had his character “Vicente Botas” interview the real person (then a Presidential Candidate) on national TV. b) Public place Neither the courts nor the doctrine have defined what is to be understood by “public place”, thus a person’s privacy is generally more difficult to protect. Other dispersed pieces of legislation must therefore be referred to. For instance, for a case involving a celebrity who owns a house on the beach: according to the legislation on National waters, (Ley de Aguas Nacionales, art. 3, sub. VIII.) the celebrity’s property ends 10 meters away from the highest tide coastline, on which point it becomes federal property, thus public. Therefore, paparazzi with long-lens camera could stand on a public place and photograph the celebrity inside his house without need for such person’s consent. Unfortunately, there have been no cases in the Mexican courts to help determine the outcome of such situation. This would constitute however a criminal offence under the Penal Code (art. 212 of the Código Penal del Distrito Federal), but it must be prosecuted as a misdemeanour, i.e. the offended party must denounce the conduct.
A) Enforcement Article 232 of the Copyright Act establishes that the commercial infringements are to be prosecuted by the Instituto Mexicano de la Propiedad Industrial (Mexican Industrial Property Institute), which will then impose a fine. All other rights are to be enforced by the model in the event of unauthorised use of his image, who then has 10 years to submit a claim for any civil claim. B) Duration and damages Like other rights protected under the Copyright Act, portrait rights are of limited duration. Article 87§4 states that “the rights established for the persons depicted shall last 50 years after their death”. Furthermore, the heads of damages shall never be under either the 40% of the total income coming from the sales of such image or the total income due as wages as if agreed previously. If the heads of damages cannot be assessed according to the above, the judge shall determine such head with assistance of two experts.
There is no enacted protection of a distinct right of privacy. In 1999, a project for a Mexican Civil Code (Código Civil del Distrito Federal) was presented. Between some articles relevant to the scope of right of information, is included the right to someone’s own image, but without any reference to financial aspects. The proposed article 150 states that “when the image or voice of a person is reproduced or exposed without authorisation, or the reproduction or display is not authorised by law, judicial authorities can order the suspension of the reproduction or exhibition, and the author of the reproduction or exhibition will be responsible for the damages caused to the person who suffered”. An important part of the Mexican doctrine considers right to the image as a fundamental right. However, other authors (like Ana Azurmendi or Ernesto Villanueva) are afraid that such legislation would hinder freedom of the press and right to the public to be informed. For more information and case-law, one can look at : http://www.scjn.gob.mx, the web site of the Supreme Court of Justice, (only in Spanish) or http://www.juridicas.unam.mx, web site of the UNAM, the central research center in Mexico. Introduction written with kind help of Pablo Antonio Santos Jiménez
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