The use of image rights, also known as portrait rights, has become an important source of income for professional athletes.
Every athlete, like every person, has the right to his image. If this right to his image is abused, the athlete can object to this. This right follows from Article 10 of the Copyright Act and the regulations for the protection of private life.
This also means that athletes can exercise their right to image. For example, athletes can give permission to a third party to use their image in exchange for a certain sum. This often happens in the context of a sponsorship agreement in which the athlete is used to promote a specific product or service.
Sports clubs and sports federations have also seen the benefits of this. In certain cases, they allow their athletes to partially waive their own rights to the image. In this way they can increase their advertising income.
However, the athlete’s portrait rights are not unlimited. If it is only used for informational purposes, the athlete cannot object to this. This applies even more to more famous and socially relevant athletes. This could include publishing a photo in a newspaper or a video montage in a news report. If the image is used for commercial purposes, you can of course object to this and, if necessary, even demand compensation.
As you can imagine, the discussion about whether the image was used for commercial or informational purposes regularly leads to legal proceedings.
For example, Kim Clijsters initiated legal proceedings against the weekly magazine ACE. This weekly magazine had published two issues in response to the tennis tournaments of Roland Garros and the US Open of 2003 and had used photos by Kim Clijsters. Kim Clijsters turned to the court of first instance in Ghent and demanded compensation from the publisher. However, the judge ruled that it should be assumed that Clijsters had given permission for the photo to be taken and commercialized.
The Court of Appeal, on the other hand, reversed this judgment and ruled that the weekly magazine had a commercial function rather than an informational one. The fact that these photos could be used for reporting on these events did not mean that these photos could be commercialized. The Court ruled in favor of Kim Clijsters and ordered the publisher to pay damages of 10% of the turnover. The compensation was ultimately estimated at the meager sum of EUR 790 (J. DEENE, “Court of Appeal gives Clijsters back her portrait rights”, Legal newspaper June 11, 2008, p. 171.)
Questions about your portrait rights? Contact us via the contact form or via sport@everest-law.be.