Argentine law, Section 31 of Law No 11,723 relating to copyright and related rights, establishes that:
- The photographic portrait of a person may not be commercialized without the express consent of the person portrayed and, where that person is deceased, of his spouse and sons or direct descendants thereof or, failing that, the father or mother. In the absence of the spouse, sons, father or mother, or the direct descendants of the sons, publication shall be free. The person who has given his consent may withdraw it but must provide compensation for any damages caused. Publication of a portrait shall be free where it is for scientific and general cultural purposes, or relates to facts or events of public interest or which have been developed in public.
Although this section uses the restrictive expression "photographic portrait", it is meant to be interpreted broadly, assimilating "photographic portrait" to "image" and still could be construed close to the so-called personal identity concept, mainly in those cases where the image is used for commercial purposes.
The concept of a right to one's image comprises both positive and negative aspects. The positive aspect is related to the holder's right to authorise the publication and reproduction of his or her image and, from a more general viewpoint, to obtain an image-related economic profit. The negative aspect means that the right holder is entitled, under certain circumstances, to prohibit third parties from obtaining and publishing his or her image.
Though closely related, the right to the image should be distinguished from the right to privacy. For example, the right to the image could be infringed by publishing an image without the owner's consent, but without violating, in certain cases, that person's privacy. In the case of people who can obtain proprietary benefits from their own image, as the case of famous people, this right is analogous to, and begins to function as an intellectual property right.
When applied to products or services, the image of a person may become a trade mark which functions as a distinctive sign, thus eliciting the consumer's mental association. Registering the image as a trade mark or authorising third parties to do so does not fall in the scope of personal rights, but belongs to the field of intellectual property. In Argentina, the right to images is under development, and its scope has not been completely defined when interpreted by the courts.
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