list of contributors - GALA

URUGUAY
Dr. Rafael Zerbino
Bado, Kuster, Zerbino & Rachetti
rzerbino@bkzr.com.uy
www.bkzr.com.uy
1. Topic: Image Rights
Where: Civil Court of first instance of the 6 th Circuit
When: July 1989
What Happened: The reproduction on the cover of an exercise book, among other city sights, is
a picture showing the plaintiff in the role of "Mama Vieja" in the "Llamadas"
carnival parade.
Comments: The reproduction of the image does not constitute an illicit conduct pursuant
to Subsection 3 of Article 21 of Law No.9.739, which establishes exceptions to
the rule of express consent.
Our case law held that the provisions of Article 21 of the referenced law
apply to the individual, but not to the character being interpreted. In
application of this criterion, the person whose image in the interpretation of
the character of "Mama Vieja" was used on the cover of an edition of exercise
books was excluded from this norm.
This is confirmed in Subsection 8 of Article 45 of Law No. 9.739*. In the first
place, because the event shown in the picture took place in public within the
context of an activity traditionally open and expansive, such as the
celebration of carnival and the participation in this type of event implies a
waiver of privacy, knowing full well that the image will be widely
publicized. In the second place, because the image whose reproduction
figures on the cover of the exercise books, is not the picture of the plaintiff,
but of the character being interpreted by an individual, there is no interest in
the person playing the part of "Mama Vieja".
*The ruling of this landmark case was based on the provisions Art. 21 of Law
No.9.739. The new Copyright Law No. 17.616 of 10 January 2003 has
modified several articles of this law, but the provisions of Art. 21 remain
unchanged.
2. Case Report: María Tarabal vs. Diario El País S.A.
Topic: Infringement of Image Rights
Where: Civil Court of first instance of the 5 th Circuit
When: December 1997
What Happened: The picture of Magela Buysan, a publicity model, was used in the sales
promotion of a magazine, without consent. Ms. Buysan sued for damages
for civil liability not covered by contract and unjust enrichment.
Although the plaintiff was photographed in a public place -the weekly Feria
in the Villa Biarritz Park- and the picture published with her consent in the
society pages of the magazine "Paula" published by El País S.A., later on and
without her consent, the image was used to promote the sale of said
magazine in publicity spots in TV and advertisements in the press.