Right of personality and common sense

Photo: Bigstock.com

A recent press release published in the name of the First Lady of the USA Melania Trump which stated that one’s name and image can be used for commercial purposes only with the consent of the individual was met in part of the Slovenian public with incredulity. Why shouldn’t her place of birth, its entrepreneurs and Slovenia in general have something out of the fact that »our« Melania is the First Lady of the USA? Are we truly not allowed to use name, surname and photo of someone for commercial purposes without that person’s consent?

I believe that the disbelief is more a consequence of thinking about a particular person rather than a matter of general opinion. Asking a similar question about commercial use of photos of, for example, Peter Prevc (a ski jumping champion), anyone would instinctively say that you cannot just put his image on your products. No chocolate producer would dream of printing a picture of Tina Maze (a champion skier, sponsored by Swiss chocolatier Milka) on their products, though it would surely boost the sales. Commercial relations with sponsors are clear to everyone.

There is probably no one who would name products after celebrities (musicians for example) without consent. Taylor Swift Cosmetics sound quite nice, doesn’t it? Using a generic personal name with no associative powers, on the other hand, is not a problem. Hearing about Theresa skincare (it exists, yes) no one thinks about any particular Theresa.

Decision on using one’s recognizable image belongs to that person alone. It is one of the rights of personality to decide if and to what extent would such image be used commercially. This right is not necessarily linked to material gain: anyone has a right to decide with what type of products and services he/she wants to be associated.

Most people are clearly identifiable by their photo. Many are quite recognizable by name and surname; some in their local community, others in their country, a few worldwide. A small number of individuals is globally recognizable by name (or surname) only: Cher, Rihanna, Sting, Ronaldo, Messi, Adele… What is acceptable therefore depends on how recognizable the individual in question is.

That this is not just some abstract human right is shown by a number of cases in various jurisdictions. There is an interesting judgement of the German Supreme Court from 1999 (Bundesgerichtshof, I ZR 49/97) – quotes in further text are from this translation) about the use of name and image of Marlene Dietrich.

The heiress of the famous movie star sued producers of the musical “Marlene” who, among other things, granted to FIAT Automobile AG right to use the name “Marlene” together with the signature of Marlene Dietrich and her photo from 1930. They also granted similar rights (including to a drawing of Mrs. Dietrich) to cosmetics manufacturer Ellen Betrix. The producers claimed their rights to do all that on the basis of artistic freedom which allows for publications about celebrities in works of art, while reporting about them is covered by freedom of expression.

A detailed explanation of the Court covered several legal questions about right of personality, particularly the material rights derived thereof. Since Marlene Dietrich was already deceased, a substantial part of the judgement is about if, and which components of the right of personality remain after the death of a person.

The German Supreme Court stated very clearly that “The personality rights should accordingly protect the right of free decision, belonging only to the person entitled, on the question of whether and under what conditions his picture or his name – and the same applies for other characteristic features of the personality – is used for the business interests of third parties”.

The decision of the Court is based on the judgement that rights of personality, comprising right to one’s own picture and the right to one’s name, protect not only non-material but also commercial personality interests. Moreover, the components of the right of personality which are of financial value remain after the death of the holder of the right of personality, at any rate as long as the non-material interests are still protected.

To simplify, the Court decided that staging a musical is not infringement of the right of personality, as it is based on artistic freedom and freedom of expression. Similarly, publishing an article about someone or his/her biography is not an infringement of right of personality, as long as it does not contain falsehoods which harm honor and reputation of the individual. Marketing such work of art is also not an infringement of the right of personality. Using image and name to advertise other products, however, is illegal and the offender may be liable for damages. In the case of Marlene Dietrich, advertising cars and cosmetics without her consent (or consent of the heiress) was therefore inadmissible.

The judgement deals with several noteworthy topics. It might be interesting that a characteristic feature protected within the right of personality may also be voice if it is uniquely recognizable. Or the conclusion that the image needs not only be a photo, but could also be a (uniquely recognizable) drawing. And the view that a celebrity can be uniquely recognizable by the first name only (although in the case of Marlene Dietrich this was not necessary to assess, as the use of the name “Marlene” was always accompanied by a photo).

In short, the right to exclusive control over the use of one’s image and name is protected as part of the right of personality, regardless of any additional protection by other (for example intellectual property) laws. Whether the individual protected his/her name as a trademark is irrelevant for third persons. Trademark protection has practical use e.g. in easier transfer of so protected rights (e.g. to a company, as was a case with Marlene Dietrich).

German legal system is similar enough to the Slovenian one that in similar cases Slovenian courts could not make substantially different judgements, particularly since both legal systems operate under the umbrella of the European Convention of Human Rights. Although similar cases in Slovenia are rare it is not for lack of recognizable individuals. There are some, particularly among sportsmen. This time however, the interest of the public and of the entrepreneurs is truly exceptional and this might have caused a feeling that Mrs. Trump’s name is becoming almost a public good.

I believe that the reason Slovenian courts did not have to judge in such cases is mostly due to common sense of the Slovenians, knowing by instinct what is right and what is not. In my opinion the rule of law works the best when vast majority is guided by common sense, which mostly correctly tells us how to conduct ourselves. After all, the laws are codified rules of behavior for which the society agrees that they are correct. When the common sense says that something is not appropriate and we heed that guidance, there is generally no need for any legal proceedings.

Considering the case of Mrs. Melania Trump it is easy to see that the situation is unique. A Slovenian by birth will enter the White House at the side of her husband, the President of the United States of America. As attractive as it might be to consider how to earn something utilizing the name and image of the First Lady of the USA, I trust in the sound judgement of fellow Slovenians. We know what is right and what is wrong.

Nataša Pirc Musar, Ph.D.