On 9 March 2021, the Supreme Court handed down judgment 133/2021, which analyses a claim of intrusion to the right to one’s own image by the plaintiff, who is a professional model, due to exceedances on the part of a client in the use of photographs for an advertising campaign, in accordance with the contract for the assignment of the use of the image that they had signed.

Specifically, the contract was for the use of the plaintiff’s image in an advertising campaign for a well-known brand of alcoholic beverages, with a duration of the right to use the image of one year. The plaintiff claimed that her image had also been used in a joint promotion of that beverage with another soft drink brand without her consent, and that the initial campaign had been extended for more than a year.

The key issue analysed by the court is that these cases never involve intrusion to the right to one’s own image. When there is an initial contract for use of image, as in this case, what can be discussed is whether there has been a breach of contract, which will entail financial consequences (compensation or more money). The court even put forward veiled criticism of the fact that the plaintiff only claimed for intrusion to the right to one’s own image, without claiming jointly or in the alternative for breach of contract, which in their opinion would be the correct thing to do.

It is an interesting judgment as it is very clear and useful for understanding the procedural and legal mechanisms in disputes over wrongful use of image. The situation in which a person claims that his or her image has been used without any prior consent is very different from the situation in which he or she gave consent (advertising contract) but then considers that the other contracting party has exceeded his or her rights in the use of the image. In the latter case, there is no infringement of the fundamental right given thar there was a contract with initial consent.

Antoni Faixó
Dispute Resolution Area