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 commercialised.
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 commercialised. The Court ruled in favour 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.)
What image rights cover, and what they do not
The right to your own image protects the use of a recognisable representation of you. It is a personality right: it stays with the person, it cannot be sold outright, and consent to one use is not consent to every use. That is the point most contracts get wrong. A permission given for one campaign, in one country and in one medium, does not carry over to a different campaign, a different market or a different medium.
Consent therefore has to be specific. Set out which images may be used, for which products, in which territory, for how long, and whether the images may be edited. Set out what happens when the relationship ends: whether material already produced may run to the close of a campaign, and whether it has to be withdrawn from the channels the other party controls.
There are limits on the other side as well. Reporting on a public sporting event does not require the individual consent of every athlete shown, because the image serves to report on the event. The line is crossed once the same image is used to sell something. That distinction between reporting and commercial exploitation decides most disputes.
Where the name or the logo of an athlete is also registered as a trade mark, a separate regime applies alongside the image right, with its own scope and its own term. Where a club or a federation claims collective rights over the images of its athletes, read that clause next to your personal agreements. Collective exploitation of team images and individual sponsorship of a player can conflict, and the contract signed last does not automatically win.
Questions about your portrait rights? Contact us via the contact form or via sport@everest-law.be.