Image rights

The right to the image is not expressly provided for by French law. It is a law resulting from the jurisprudence on the basis of two texts:

• Article 9 of the Civil Code, which states that ” Everyone has the right to respect for his or her private life,” and ;

• Article 8 of the European Convention on Human Rights which states that ” Everyone has the right to respect for his private and family life, his home and his correspondence. ”

The right to the image therefore derives from these fundamental rights and cannot be set aside in favor of freedom of expression, whether artistic or not, as long as the individual is perfectly recognizable.

Referring to these articles, the ‘Cour de cassation’ recalls that:

” 5. It follows from these texts that the right that the person has on his image relates to its capture, its conservation, its reproduction and its use and that the only observation of an infringement opens right to compensation.

6. According to the jurisprudence of the European Court of Human Rights, the individual’s control over his image implies in most cases the possibility of refusing the dissemination of his image and includes at the same time the right for him to oppose the capture, conservation and reproduction of it by others. As the image is one of the characteristics attached to the personality of each person, its effective protection presupposes, in principle, the consent of the individual from the moment of its capture and not only at the moment of its possible diffusion to the public (ECHR, judgment of 15 January 2009, Reklos and Davourlis v. Greece, no. 1234/05, § 40; ECHR, judgment of 27 May 2014, de la Flor Cabrera v. Spain, no. 10764/09, § 31). ” (Cass. civ.^1ère, June 2, 2021, n°20-13.753).

Thus, prior to the capture and exploitation of a person’s image, whether in a physical place, via a publication on the Internet etc ., it is necessary to obtain his consent.

Otherwise, the author of the capture and/or exploitation of the image is liable.

There is an exception to this principle with regard to the capture and use of images purely for information purposes (press, journalism…). However, in the vast majority of cases, prior authorization is required, at the risk of exposing the perpetrator to civil and/or criminal penalties depending on the facts and the type of damage caused to the victim.

In practice, the obtaining of this authorization is materialized by the conclusion of a deed of transfer of image rights in the framework of which the following elements are mainly specified:

• The framework in which the image is captured (advertising campaign, testimonial, photo shoot …) and more broadly information about the artistic direction of the project);
• Capture methods (photo, video…) ;
• The scope of the license granted, including:
  • The modes, supports and places of exploitation of the image;
  • The purpose of the operation;
  • The geographic extent of the licensed operation;
  • Duration of Authorization;
  • The financial consideration for the authorization, if any.

The transfer of image rights can also be provided for in contracts with a broader scope.

This is sometimes the case in the context of certain employment contracts, partnership contracts between celebrities and brands, brand muse contracts, or collaboration contracts.

The partnership between a brand and a celebrity can take many forms.

Most often, it is a contract by which a celebrity commits himself in a punctual way and against payment, to promote a brand or a product. This contract provides:

• On the one hand, the transfer of the celebrity’s image to the brand: this part of the contract is more or less identical to a classic transfer of image rights, in that it sets out the conditions under which the muse authorizes the brand to exploit its image;

• On the other hand, there are several other obligations and prohibitions that weigh on the celebrity and that vary considerably from one partnership to another, including:
  • The obligation to make a certain number of publications on social networks to highlight the brand’s products;
  • The obligation to respect a certain editorial line in its publications;
  • The prohibition of negative comments about the brand and its products;
  • Depending on the case, a ban on working with a directly competing brand for a certain period of time.

Although partnership contracts have existed for several years, they have grown considerably in the last 10 years with the boom in social networks and the phenomenon of ” Social media influencers “, i.e. Internet users who benefit from a large community of subscribers and who have become, as a result, perfect showcases for the trademarks .

The brand muse contract goes further than the partnership contract in that it provides for a model or celebrity to become, in exchange for payment, the image/ambassador of the brand for a specific period of time. This contract provides:

• On the one hand, the transfer of the image of the muse to the brand, like the partnership contract;

• On the other hand, there are several other obligations and prohibitions that weigh on the muse and that are often more important than those provided for by a simple one-time partnership, which may include, depending on the case, the following:
  • The obligation to represent the brand in regular events;
  • The obligation to publish regular content on social networks to highlight the brand’s products ;
  • The requirement to wear branded products in public appearances;
  • Prohibition of branddisparagement ;
  • A ban on working for a competing brand for a specified period of time.

In addition to these two contracts, brands also regularly enter into collaboration contracts with celebrities. This type of contract provides:

• On the one hand, a collaboration between the celebrity and the brand for a specific project. For example: the creation of a collection of fashion articles, the creation of recipes for a restaurant, the design of the decoration and the layout of a place (restaurant, hotel…).

• On the other hand, the transfer of the celebrity’s image as part of the communication on this collaboration project, as well as several other obligations and prohibitions similar to those of a partnership or muse contract.

The notion of image infringement is complex and is constantly developing with the evolution of digital technology.

It is therefore strongly advised to be assisted by a lawyer specialized in the drafting and formalization of this type of contract (although the principle of contractual freedom allows the parties to determine the terms and conditions of their relationship, the clauses of the contract must be drafted in a clear and unequivocal manner so that the reciprocal commitments of the parties cannot be called into question in the event of a dispute, in order to guarantee the co-contracting parties a certain degree of legal security).

Point of jurisprudence

The transfer of image rights without limitation as to duration, place, medium, and territory of distribution is valid so that the violation of this right is not characterized, provided that the photographs are determined in the act of transfer. (Cass. civ. 1ère, January 28, 2010, n°08-70.248)

The Bouchara Law firm assists you in particular in :

• Protection and defense of image rights in France and abroad;
• The drafting of contracts for the transfer of image rights;
• The drafting of partnership contracts between brands and models or celebrities ;
• Drafting of brand muse contracts;
• The drafting of collaboration contracts between brands and celebrities;
• Protection of your intellectual property assets(trademarks, designs, copyrighted works, etc.).