Everyone is talking about the “resurrection” of Lola Flores as well as about the “making-off” of the new commercial of @cruzcampo, but… What about the artist’s image rights?
*image extracted from the video of the making-off of the commercial, link below. All rights reserved.
It is amazing to see the things that can be done with technology and, above everything with artificial intelligence. However, the first thing that came to my mind when I saw the new commercial of Cruzcampo was: how have they handled the image rights of a person who has passed away? ) Professional distortion (my mentor had already warned me that this will happen to me): once inside the IP world, you never look at trademarks, advertising campaigns, artworks, counterfeit products, etc. the same way again.
Let’s get down to business: what are image rights and what happens when someone dies?
The right to one’s self-image is a fundamental right contained in Article 18 of the Spanish Constitution and developed by the Organic Law 1/1982, of 5 May, on the Civil Protection of the Right to Honour, Personal and Family Privacy, and to one’s self-image.
The image right is a personal right (of everyone). Case-law and our legislation distinguish two aspects of this right that we must differentiate: the constitutional aspect and the economic aspect. Broadly speaking and as an example, it is not the same that someone publishes a picture which has already been published in another public media, as this would represent a violation of the economic aspect, or that a picture of private domain is disclosed, in which case the fundamental right would be violated.
As far as we are concerned, we are talking about the economic aspect of the right, because what they have done is to use different images to construct an avatar with the appearance of Lola Flores, transmitting an emotive message (for advertising purposes).
But have they had to ask for permission? And if so, from whom? Well, for those of us who are not well-known or famous, this may not make much sense, but if your image has a certain relevance, it is important, and surely all public figures do so, to include in the will to whom this right is transferred, otherwise it will die with us and our heirs will not be able to exploit it (although they could act in relation to the protection of the memory of the deceased, related to the constitutional aspect of the right).
In the present case, we must assume that Lola Flores expressly transferred her image rights to her heirs and that it is them who have authorised their use for advertising purposes to Heineken (the manufacturer of Cruzcampo beer).
It is curious that both the work and the songs of Lola Flores are protected during her lifetime and for 70 years after her death, and that the intellectual property rights over them are passed on to her heirs without the need of a will, while in the case of image rights, an express testamentary mention is necessary for their transmission.
You can watch the making-off of Cruzcampo’s commercial in the following link:
https://www.youtube.com/watch?v=BQLTRMYHwvE
Contributed by:
Sílvia Oliver, Lawyer at CURELL SUÑOL
