Commercial use of image rights: Paris Tribunal boosts models and performers’ protection

If someone takes part in a photo shoot for the promotion of a clothing line, they consented to his or her image being used online as part of the designers’ advertising campaign – surelySimilarly, if you blur somebody’s face in a film so much so that he or she is no longer recognizable, you have dispensed with your obligation to respect their right to their image  surelyWell, don’t be so sure  the Paris Tribunal would reject both assumptions, according to recent judgments on image rights. 

In two decisions, dated 16 November 2018 and 21 November 2018, respectively, the Paris Tribunal (‘Tribunal de Grande Instance’) clarified the application of image rights in the context of commercial advertising, opting for an interpretation of the law favourable to models and performers.

The contribution of the Tribunal’s recent jurisprudence declared that:
  • Taking part in a photo shoot for advertising purposes does not imply consenting to all forms of commercial exploitation, notably if the scale of the marketing campaign using the image is broader than what was expected by the model.
  • Blurring the face of a model/performer does not put an end to the breach of his/her image rights when the rest of his/her body still features in the film.

In both cases, the claimants were models. In both cases, there was some form of agreement in place between the model and the production company. Yet, in each case the model's image rights was reached. So what went wrong? Read on for more. 

A female model, Mrs X, participated in a photo shoot for SARL Denim, a clothes designer and defendant in the case. Mrs had been paid 300 euros for the session. No additional remuneration for the commercialization of the image was negotiated or agreed upon, in part, it would seem, because the model was subsequently hired as an employee in a different department within the same company.
The photos resulting from the photo shoot were then used in a collection catalogue of the company, distributed via the website of an online retail distributor: The same photos were also posted on the social media accounts of the company.

Cat consent?
Photograph by Michelangelo Cecilia
The model complained that she was not expecting the photos in which she appeared to be part of a marketing campaign of such a scale. She sued the company for infringement of her image rights on the basis that she never consented to her image being exploited in the context of such a wide advertising campaign.

The Paris Tribunal accepted her claims, noting that there was no evidence, written or other, that she had consented to the use of her image the extent described above. This is because the contract of employment signed by the parties for the purpose of the photo shoot made no mention of her consent for the commercial use of her image, on either a small or large scale. For this reason, her consent could not be implied. In particular, her participation in the photo shoot does imply her consent to a large-scale advertising campaign.
The company does not evidence that Mrs X consented, even in an implied manner, to the use of her image via the range of media at issue, the mere fact of agreeing to take part in a photo shoot does not amount to such an agreement; incidentally, authorizations regarding the use of an attribute of one’s personality, which do not provide for a time limitation or range of media restrictions, are not valid in light of the rules governing contract law.*

Shot from Umanlife's advertising clip
The claimant, a model by trade, had agreed to the commercialization of his image rights via an advertising video clip produced for the start-up company ‘Umanlife’, in which he featured. In a written agreement signed on 24 September 2013, the claimant had agreed to the use of his image on any media for a period of two years. 

By October 2016, i.e. over three years after the contract was signed, the model noticed that the video featuring his performance was still available on YouTube (see here and below). The start-up considered that it was still their contractual right to use the model’s image because the release of the video clip had been delayed by a year, therefore, the company’s usage of the model’s image (which took place between the autumn of 2014 and the autumn of 2016) was still within the term prescribed by the agreement. Unfortunately for Umanlife, the contract did not specify the starting point of the contract. On the basis of the evidence submitted by the parties, the Tribunal interpreted the term applicable to the image rights to run from the point of the formation of the contract, and not from the release of the video by the company.

Interestingly, the Tribunal also agreed with the claimant’s submission that the fact that Umanlife edited the video so as to blur the face of Mr X in the version of clip distributed on YouTube did not put an end to the acts of infringement. It appears that between the time Umanlife was notified of Mr X’s claim for infringement and the date of the hearing, Umanlife edited the video to limit their liability for infringement.

This precaution by Umanlife was not enough in the eye of the Tribunal. Even if the model is no longer identifiable in the edited YouTube video because his image is blurred, the company was still infringing his image rights, this because the video was still showing his body without consent. The decision states:
It does not matter whether or not the claimant’s face is “blurred” on the day of the hearing, if the rest of his body, an element of his image right, still features in the film.**
As a result, the claimant was awarded 8,000 euros in damages for breach of Mr X’s image rights (in addition to damages for costs, amounting to 3,500 euros). Nevertheless, the Tribunal refused to grant an injunction to take-down the video from YouTube, the only online platform on which it is available, considering that the damages provided sufficient compensation for the prejudice suffered. The Tribunal also noted that granting the injunction would have been dis-proportionally harmful to the start-up company which had already compensated the model for his work – implying, it seems, that the defendant’s pockets were not deep enough to require them to produce a new video. The decision does not expand any further on this point.

On a lighter note, this means that the claimant’s blurred performance is still out there to be enjoyed by all.

Umanlife's advertising clip 

* Kat’s translation. Original text reads: “la société ne démontre pas qu’implicitement, Mme X. aurait donné son accord à l’utilisation de son image sur les multiples supports en cause, le simple fait d’accepter des séances photo n’impliquant pas un tel accord ; qu’au demeurant, ne serait pas valable une autorisation, illimitée dans le temps, sur tout support, s’agissant d’un attribut de la personnalité et compte tenu des règles régissant le droit des contrat”.  

** Kat’s translation. Original text: "Peu importe que le visage du demandeur soit « flouté » ou non le jour de l’audience, dès lors que le reste de son corps, attribut du droit à l’image, apparaît."

Commercial use of image rights: Paris Tribunal boosts models and performers’ protection Commercial use of image rights: Paris Tribunal boosts models and performers’ protection Reviewed by Mathilde Pavis on Monday, December 03, 2018 Rating: 5

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