'The Right to One's Own Image': Publicity and Privacy Rights in the United States and Spain

28 Pages Posted: 1 Jun 2000

See all articles by Stephen R. Barnett

Stephen R. Barnett

University of California, Berkeley - School of Law

Abstract

The United States has been called the world's "leading proponent of publicity rights" for celebrities. This paper tests that claim by comparing the U.S. law of publicity with that of a randomly chosen European country, Spain. While the right of publicity in the U.S. is a varied creation of state law, in Spain it rests on a statute, the Organic Law of May 5, 1982. That Organic Law provides civil-law protection for the "fundamental right to honor, personal and family privacy, and one's own image" guaranteed by Article 18 of the Spanish Constitution of 1978; in particular, Article 7.6 of the Organic Law makes actionable the use of a person's "name, voice or picture . . . for purposes of advertising, business, or of a similar nature." The Spanish "right to one's own image" appears to be no less protective, over all, than U.S. publicity law. Actionable commercial or "advertising" uses in fact seem broader in Spain, which takes a more flexible, case-by-case approach than does the more categorical U.S. law. In cases involving conflicts between privacy and public information, the two jurisdictions seem to come out at about the same place. The question of a "free speech" defense for the use of a celebrity's "image" in what is plainly an advertisement remains unresolved in both jurisdictions. United States law does seem more protective in its willingness to interpret broadly the concept of a celebrity's "image" or "identity." On the whole, however, the similarities between the American and Spanish treatments of the publicity rights of celebrities outweigh the differences, presenting a nuanced, balanced comparison that offers little ground for a claim that the United States law is distinctively the more protective.

Suggested Citation

Barnett, Stephen R., 'The Right to One's Own Image': Publicity and Privacy Rights in the United States and Spain. American Journal of Comparative Law, Vol. 47, P. 555, Fall 1999. Available at SSRN: https://ssrn.com/abstract=224628 or http://dx.doi.org/10.2139/ssrn.224628

Stephen R. Barnett (Contact Author)

University of California, Berkeley - School of Law ( email )

Boalt Hall
443 North
Berkeley, CA 94720-7200
United States
510-642-5049 (Phone)
510-643-2673 (Fax)

Register to save articles to
your library

Register

Paper statistics

Downloads
873
rank
25,736
Abstract Views
6,097
PlumX Metrics