Mexico: EMMY Winning Documentary Causes Change To Image Rights In Mexico

Last Updated: 21 May 2015
Article by Olivier Olivares

Luis Schmidt and Abraham Diaz have recently won a civil court decision on behalf of the producers of the EMMY winning documentary, “Presumed Guilty”. 3 years ago Luis Schmidt and Abraham Diaz worked pro bono to lift an injunction on the distribution of the film into Mexican cinema’s. The injunction created much publicity and the lifting of it even more and then film went on to win an Emmy for best documentary. This recent decision now had precendent setting decisions that will govern what producers of documentaries can or cannot do regarding the image of people appearing in their documentaries. This is a landmark case.

At Olivares we assessed the producers of the documentary “Presumed Guilty”, which is controversial because it denounces vices of the Mexican Criminal Law system, which leads any individual to be in jeopardy of suddenly becoming a PRESUMED GUILTY.

Olivares defended the producers and director of the film by removing an injunction rendered by a District Court.  This film was awarded an EMMY for best documentary in 2011 and was only shown in Mexican cinemas, and thus able to be seen by the world, because Olivares, on a pro bono basis, managed the legal process of removing the injunction, which at the time was fought at the political level because of the ramifications of the substance of the film coming to market, i.e. the world would see the injustice in the Mexican penal system and the corruption inherent within the Mexican justice system.

The scenario for making this denounce is one single and ordinary penal case, wherein an individual named JOSE ANTONIO ZUÑIGA (TOÑO) was accused or murdering another individual named JUAN CARLOS REYES PACHECO, and because of a criminal proceeding full of legal vices, TOÑO was convicted to 20 years of prison.

The investigation conducted by Roberto Hernandez and Layda Negrete, who are attorneys but were as well the producers of the documentary, brought to light all the vices of TOÑO’s proceeding. Likewise, in a landmark case Roberto and Layda obtained the permission to record all the hearings of TOÑO’s criminal proceeding, being the case that all this footage helped TOÑO to obtain his liberation after 2 years of imprisonment.

The footage of the hearings evolved into a one and a half hour documentary, and it was then that Roberto and Layda requested the legal assistance of OLIVARES to evaluate the risks involved in releasing it.

From the very beginning we knew that it was a very controversial documentary, which could trigger many law suits as the image of many individuals was appearing in the documentary without any authorization. However, the result of our analysis was that we could rely in the exceptions set forth in the Mexican Copyright Law, which allows the recording of the image of persons who are in public places and for informative or investigative purposes. Hence we gave green light to PRESUMED GUILTY.

Nevertheless, as a consequence of the exhibition of the documentary the producers and the distributors of the documentary were sued by 3 individuals appearing in the documentary; namely: i) the relatives of JUAN CARLOS REYES PACHECO (the murdered person); ii) VICTOR DANIEL REYES BRAVO, the cousin of the murdered person and who by the way was the only witness of charge against TOÑO; and iii) JOSÉ MANUEL ORTEGA SAAVEDRA, an ex police officer who was involved in the apprehension of TOÑO.

These 3 persons were claiming an indemnification derived from damages and moral damages. JUAN CARLOS’s relatives and VICTOR were represented by the same lawyer, and the sum of all what they were requesting amounted to 3,000 milllion Mexican Pesos (approximately 300 million USD), while ORTEGA was demanding 60 million pesos.

We obtained 2 favorable ruling in the trials started by JUAN CARLOS’ relatives and VICTOR, being the case that as we had advised, the rules set forth in the Mexican Copyright Law are not applicable to VICTOR and JUAN CARLOS, and on the civil law side, they proved no damages at all. Hence, the producers and distributors that we represented have been totally absolved.

We also received another favorable ruling from the 8th civil court, in the case started by ORTEGA, exactly in the same sense, namely, the rules set forth in the Mexican Copyright Law are not applicable to ORTEGA, and on the civil law side, he proved no damages at all. Hence, the producers and distributors that we represented have been absolved in that case too.

Originally published February 12, 2014

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