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The court held that the image rights have been infringed upon due to the
circulation of a photograph for advertising purposes without consent.
The conduct, which violates image rights, constitutes an illicit act that can be
indemnified in conformity with Article 1319 of the Civil Code and
specifically Article 21, Subsection 1 of Law No. 9.737 (article, which has not
been modified by the new Copyright Law No. 17.616 of January 2003).
The court accepted the propriety of pecuniary damages as the photograph is
marketable, i.e. it can be put into circulation for payment. There is a value
derived from the picture, which is taken advantage of by the person using
the picture.
The court held that there was a case of lost profits, as the plaintiff was a
model, who normally gets paid a fee for promotional "spots" or publicity.
The damages were calculated on the basis of the model's regular fees for
publicity "spots".
The defendant filed an appeal against the decision of the Judge in first
instance, but the ruling of first instance was confirmed, awarding pecuniary
damages calculated on a publicity model's fee schedule. As the plaintiff
failed to prove moral prejudice, the court did not award compensation.
Comments: Consequently, it has to be pointed out that the mere fact of having
authorized the photograph does not imply a waiver of ones rights.
Therefore, we agree with the Judge in that the image rights of the plaintiff
have been infringed upon by virtue of the circulation of her photograph for
publicity purposes without her consent, a conduct that constitutes an illicit
conduct and entitles the plaintiff to damages.
3. Case Report: Associazione dei Siciliani en Uruguay vs. AUDAP
Topic: Discriminatory or offensive publicity
Where: Out-of-court complaint
When: 29 July 1994
What Happened: The "Associazione dei Siciliani in Uruguay filed a complaint with AUDAP
(Uruguay Association of Advertising Agencies), denouncing a commercial
which in their view was offensive to the Italian community.
The commercial showed a scene where a grandfather and an apparent
counsellor treated the grandson as a traitor for "working" within the law;
even more, they reproached him for "not going to the nightclubs anymore"
and for having forgotten what grandmother had taught them: "lie to the
teacher", "never do the scores" and now "working". By all appearances, the
commercial was inspired by a scene from "The Godfather", showing the
grandfather smoking in the background and the counsellor, hardly hiding a
gun under his waistcoat, saying: "el cento per cento, cuanto si gana?"
suggesting that the grandfather find a new source of income.
In the view of the Associazione dei Siciliani in Uruguay, this publicity
constitutes an offence to the Italian community. The offence was considered
even more serious, due to the fact that the commercial in question was in
promotion of the State Lottery, the Lottery and Pools Office being an Agency
of the State.
In their complaint, the Association made a strong point of the provisions of
the Universal Declaration of Human Rights, which stipulates in its Art. 13.5: