Image rights can get messi!

July 12, 2016 Published by

Barcelona football star, Lionel Messi, was recently sentenced to 21 months in prison and fined the equivalent of $2.95 million after being found guilty of tax fraud. Messi allegedly used different offshore companies to evade taxes on income made from Messi’s “image rights”.

In Spain there is a constitutional right to one’s own image. This essentially means that one has the right to control use of their image.  Accordingly this right is often the subject of various sponsorship, ambassador or product endorsement deals where third parties pay a fee to use the image of person to promote their goods or services.

The USA has a similar right known as “right of publicity”, however in Australia there is no equivalent right to control use of one’s image.

Instead there are a number of laws in Australia which may be used to try and stop an unauthorised use of your image such as defamation, consumer laws relating to misleading and deceptive conduct and the common law tort of passing off, but unless you are the copyright owner of a particular image (e.g. you created an artistic work of your own image) you cannot really sell or control your image in the same way as in Spain and USA.

However, the very threat of legal action being taken for unauthorised use of an image is often enough to encourage businesses to seek permission and pay for the right to use one’s image in connection with their business. Accordingly a right to use one’s image is still a key negotiating point in many sponsorship deals in Australia despite there being no specific legal right to one’s image in Australia like in Spain and USA.

Notwithstanding this, it is fairly unlikely you can bring an action for unauthorised use of one’s image if you are just an ordinary person. This is due to the fact that to bring an action for passing off, one must establish that they have a reputation which effectively warrants such passing off protection. Similarly for misleading and deceptive conduct you need to show that use of the image is likely to mislead or deceive the public. So an ‘average joe’ is less likely to be approached by businesses wishing to use of his/her image. Accordingly unless you are a celebrity or other public figure like Lionel Messi you have limited rights to control or sell your image in Australia.