Legal regulation of non-property right to an image

Abstract

Today, the image of a person occupies the core of the communication process, as it is present everywhere and there are a large number of uses of it every day, whether it is taken professionally or not, and there are countless cases where the image is sold and traded in exchange for money, as the right to an image is the right of the person who presents it to oppose the publication of his or her image and to sell it when necessary. Everyone has the right to an image, regardless of whether it is anonymous or famous. This right is governed by civil law and is therefore different from copyright (which is governed by intellectual property law). This article analyses the multiplicity of rights to images and the classic conflict between the right to an image and copyright. The author analyses the main mechanisms of legal protection of a person's image in certain jurisdictions, both within the civil law and common law tradition. The classical approach considers image rights as an external limitation of copyright, and therefore characterises the relationship between image rights and copyright as predominantly conflictual in nature.
 Nevertheless, one can also focus on the overlaps between the right to self-image and copyright, as both are intangible assets that combine both extra-patrimonial and patrimonial interests. In this respect, copyright can serve as a model for the possible creation of a European patrimonial right to the image. Although the idea of promoting the recognition or creation of a new intellectual property right to protect the economic attributes of a person's image in the national jurisdictions of EU Member States, inspired by the American right of publicity, is not new and has been put forward by doctrinal circles in both civil law and common law traditions, the new boundless realities of image dissemination and commercialisation, as well as the establishment of reliable protection for the dignified attributes of a person's image in the case law of the European Court of Human Rights, underline the need and possibility of constructing a European patrimonial right to one's own image. The unique prototype of copyright consisting of a synthesis of non-patrimonial and patrimonial interests can be used as a model for the construction of such a right.