Image Rights in Ecuadorian Legislation By Juan José Arias ... - GALA

Image Rights in Ecuadorian Legislation
By Juan José Arias D.
FALCONI PUIG ABOGADOS
Article 66 of the Ecuadorian Constitution, protects the right of every person to its own
image, in connection with the protection of the honor and reputation of a person.
Nonetheless, there are no specific provisions in Ecuadorian legislation, that relate to the
exploitation of a person’s image for commercial purposes, that is of special concern for
artists, celebrities and sports figures.
All contracts relating to the use of a person’s image for commercial purposes are drafted
under the general terms of any services contract. The person is paid for the participation
in a photographic or recording session, and the right to use the photographs or videos for
commercial purposes, but not for the right to use the image of the person itself.
So, if no specific provisions are set forth in Ecuadorian legislation, what is a celebrity to
do when its image is used without its authorization, in connection with any sort of goods
and/or services in Ecuador?
Fortunately, our copyright legislation, paired with the provisions from our civil and
mercantile law, provide enough protection for celebrities to feel safe to authorize the use
of their images for commercial purposes in our country.
First of all, our Intellectual property law, in article 41, dictates that any photographic
work of a person must encompass its authorization in writing, detailing the scope as to
which the image can be used by the photographer. An authorization is not required when
the picture is taken in public spaces, and to the extent of cultural and/or information
purposes.
Though there is no similar provision regarding videos and other audiovisual works, a case
could be made that the said article can also be applied to these types of media, by way of
an extensive interpretation of the law, as long as it seeks to broaden, not reduce, the
protection of a right, in this case, that over the image of a person.
Ecuadorian trademarks law complements the protection in the field when it prohibits the
registration of any and all parts of a person’s identity, be it its name, pseudonym,
signature, title, image, portrait or caricature of a person, different from the applicant,
without its consent. This is found in Article 196, lit. f) of the aforementioned Ecuadorian
IP law.
Nonetheless it is in the chapter about unfair competition, within the same said law, that
we find what we believe is the most determining way for the protection of a person’s
image, although it refers only to celebrities, and not to regular people.

Article 285 defines what is to be deemed as an act of unfair competition, considering as
such, any act capable of causing confusion among consumers regarding the
characteristics of goods or services alike, or dilution of the intangible assets of a person
or company, expressly including among the examples of dilution, the fading of a
celebrity’s advertisement value.
All of these can serve as basis for and administrative or judicial suit, when the image of a
famous person has been used, either together or separately, depending on the
characteristics of the case and the strategy outlined for it.
Additionally, our civil legislation can be also be brought as basis to protect the image
rights of a person, mostly when there has been a breach of agreement on a contract that
relates to this sort of matters, but even in the case of unauthorized use of a person’s
image, if it can be proved to have caused a moral damage to the person.
This would be easy, for example, when a person’s image is used in connection with
materials of sexual content or related to drugs, even alcohol or tobacco; but could prove a
more difficult challenge when used in a more subtle manner, not related with these types
of behaviors or products.
Either way, Ecuadorian legislation, although lacking specific laws to regulate not only the
misuse, but mainly the lawful use of one self’s image with commercial purposes, does
have provisions that serve to protect the right of a person on its own image.
Nonetheless, our legislation still lacks the level of protection that other countries offer
with laws specific to the particularities of image rights, the contracts derived form it and
the endorsement of goods and services by celebrities. Yet, at the moment, no projects are
in sight for any internal legislation of this sort.