If you are with your family on the beach, you can’t be portrayed for a Film festival without your permission even if you authorised the picture. This is the conclusion achieved by the Appeal Court of Santander on its recent judgement of January 29th, 2018, whereby a mother and her daughter succeeded in their appeal against the non-authorised use of their images in the poster presenting the Film Festival of Santander of 2016.
This conflict is not only about the requirement of consenting the use of someone’s image to appear in a picture, but also about who is responsible of obtaining such a consent. The defendant was the Film organization, who in a previous mediation proceeding refused to pay any damages to the affected women, alleging that such permission should have been taken and paid by the photographer.
The picture was taken while the women were under a public shower in a swimsuit at the entrance of the beach in Santander. Apparently, they both knew that the photographer was shooting this picture, and did not object to it. However, they didn’t know that the photographer would sell later the picture with her copyright to the Film organization, who used it to advertise, in a printed poster exhibited all around the city and in Internet, the new edition of the Film festival: https://nuevasolas.com/2016/09/30/largometrajes-de-suecia-espana-bolivia-portugal-y-argentina-compiten-en-el-festival-de-cine-de-santander-nuevas-olas/
The photographer was not sued because during the mediation she apologised to both women and paid a symbolic amount of money (100 eu) in compensation for the moral damages.
The Film organization opposed successfully in first lawsuit to the complaint. In the opinion of the first Judge, the consent for the use of the image rights was a duty of the photographer, who should have complied to this legal requirement before selling the picture and assigning her copyright on it. However, the Appeal Court has overturned this decision under the consideration that two consents were necessary, a first one was to take the picture (tacitly given in this case), and a second one to exhibit the picture portraying the persons who are recognisable, appearing in a non-accessory situation. Now, the Film organization has to pay 6.000 euros to both plaintiffs.
The decision is relevant for the Spanish practice, in particular about the extension and wording that consents must have to respect the image rights.
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