As we have explained in previous briefings, the new Argentine Civil and Commercial Code contains several sections that refer, both directly and indirectly, to intellectual property matters.
For example, the new code addresses in section 53 the subject of right to the image, and it does so in terms similar to those of section 31 of law 11,723 (Intellectual Property Law).
The right to the image has double content:
A positive aspect: the holder's right to authorise the publication and reproduction of his or her image, and from a more general perspective, to obtain an image-related economic profit.
A negative aspect: the right to prohibit third parties from obtaining and publishing one's own image.
The above-mentioned Section 53 of the new code is broader than Section 31, because while the latter refers exclusively to the portrait (although both doctrine and case-law had widened their scope when interpreting it), the new section now includes any registration: visual, auditory or audiovisual.
It arises from Section 53 that the holder's consent is required not only for the reproduction or publication of the image or the voice, but also for the capturing thereof.
Another significant difference compared with the previous text is that as the new regulation does not foresee the expression "it may not be commercialised", any capturing effected without the holder's consent, whether or not it is placed in commerce, will be illegal.
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Daniel R Zuccherino |
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