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Czech law

The commercial appropriation of personal rights – Publicity Rights in the Czech Republic Part 1

The protection of personal rights is regulated in the Civil Code, Act No. 40/1964 Coll. In S. 11 that states that an individual shall have the right to protection of his or her personhood, in particular of his or her life and health, civic honour and human dignity as well as of its privacy, name and expressions of personal nature. S 12 developed special regulation relating to documents of personal nature (also signature), portraits, pictures (likeness) and image and sound records concerning an individual or expressions of his personal nature (also voice). This  may be taken or used only with his or her consent.[1]

Image right, the right to use and protect one’s own image, is the core part of the fundamental personal rights creating the notion of the of the personality. It is a personal right but as well a property right if the use serves the commercial exploitation.

The subject of the protection are not only celebrities in which case their picture is a valuable asset but it is a right of every human being to control the commercial use of his or her identity that protects individual’s identity from being misappropriated by another for commercial use.

To establish that the use is unauthorized, the plaintiff must show four conditions: (1) the defendant’s use of the plaintiff’s image (or above mentioned other personal aspects (name, voice, likeness, signature, photos); (2) the appropriation of plaintiff’s image to defendant’s commercial advantage (3) the lack of consent; and (4) resulting damage/injury/loss.

If the conditions are met, the appropriate remedy for the breach of the image right (exploitative use) is to claim moral remedy, injunction, damages and in the Czech case law the predominant remedy is unjust enrichment.

According to the § 451 of the Civil Code (1) Anybody who gains unjust (unjustified) enrichment to the detriment of somebody else shall give off the enrichment. (2) The unjustified enrichment is defined as a property benefit gained from a performance without a legal reason, a performance from a null and void legal act, a performance from a legal title that fell off as well as a property benefit gained from unfair sources (in this case without consent).

In assessing the amount of damages these criteria shall be considered: the market value of the non-permitted use by comparing the use to the plaintiff’s previous contract that has to be similar and under similar condition; the loss of future potential profit and financial opportunity due to this misappropriation; when there are not comparable data, the court has to take in comparison the market data that are comparable to the circumstances.

New Code Civil (in force 1.1.2014) Act n. 89/2012 Coll. in Art. 3004/2 newly states that the plaintiff may recover the doubled value of the plaintiff’s profits usual in these circumstances (similar legal basis as in Copyright law).

Part 2 -Relevant case law

Rights of the Deceased – posthumous right of publicity


[1] The consent shall not be required if the documents of personal nature, portraits, pictures and image and sound records are to be used for official purposes on the basis of an act.

Portraits, pictures and image and sound records may be taken or used without the consent of the individual adequately also for purposes of science or art and for the purposes of press, motion picture, radio and television news service. However, such use must not be at variance with lawful interests of the individual.

 

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About ondrejovae

Czech Attorney/Barrister located in Prague with specialization in media law and protection of personal rights

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Dear readers and followers, I would like to make an announcement that I have opened my own legal office. The website of the office is www.ondrejova.cz

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