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

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.