Posthumous right of publicity
The post-mortem protection in the Czech system is stated in S.15 of the Civil code, Act No. 40/1964 Coll.:
„After the death of the individual, the right to protection of his or her personhood may be asserted by his or her spouse (registered partner) or children or, if there are no spouse or children, to his or her parents.“
New Civil code (in force 1.1.2014) broaden the class of the entitled person according to the German concept of the close relatives (not only spouse, children, parents, but also grandchildren, brother, sister, brother-in-law, and other close person). So far only moral remedy was available if there was any infringement of the personal right of the deceased. Since 1.1.2014 the executor or the successors will be entitled to continue in an action that has been raised by the claimant prior to his death. According to the S.3004 if there is an unjust enrichment caused by the infringement of the personal rights of the others (included deceased person), the plaintiff may recover the doubled value of the plaintiff’s profits usual in these circumstances (similar legal basis as in Copyright law).
In this respect the right of publicity claim has relationship with a copyright claim. If the infringing use of one’s personal right (image, likeness, identity etc.) primarily involves use of copyrighted work, than there is possibility to bring a claim in respect of breach of the Copyright.
The Czech Copyright legal system differs from the Common law and other continental jurisdiction despite being harmonized with EU law. Czech copyright law is based on a dualistic concept and author’s work includes moral rights and economic rights.
In respect of moral rights, after the death of the author no one may arrogate authorship of the work; the work may only be used in a way which shall not detract from its value and, unless the work is an anonymous work, the name of the author must be indicated, provided that such shall be a normal practice. Protection may be claimed by any of the author’s kin1a). They shall maintain this authorization even if the protection of the copyright-related economic rights expired. Such protection may at any time also be claimed by legal persons associating authors or by the relevant collective rights manager. S. 11 Copyright Act, Act No. 121/2000 Coll. The economic rights shall run for the life of the author and 70 years after his death. S.27 states limitations and term of this general period of time protection. An author whose rights have been infringed or whose rights have been exposed to danger of infringement may claim Adequate satisfaction for the non-financial damage, in particular, in the form of pecuniary satisfaction, if any other satisfaction proves unsatisfactory; the amount of the pecuniary satisfaction shall be determined by a court, which shall take into account, in particular, the gravity of the damage incurred and the circumstances in which the infringement of the right occurred. The author may claim compensation for the loss of profit in an amount that would have been normally paid for obtaining the respective licence at the time of unauthorised disposition of the work. The amount of unjust enrichment gained on the part of whoever unlawfully disposed of the work without being granted the necessary licence shall be deemed to be double the remuneration that would have been awarded under normal conditions at the time of unauthorised disposition of the work.
The Supreme Court, file No. 28 Cdo 4755/2009 from 20.07.2011
The factual background: the tabloid magazine used the pictures/images of the well-known Czech singer on their cover page for more than 50 in six months. The plaintiff did not give any consent to this publication. As the publication and mostly on the title/cover page was excessive and the purpose was only to promote the sell of the magazine, the Court held that such a use was endorsement of the image right of the plaintiff and amounted to the unjust enrichment of the magazine. The remedy was established as doubled price common in the area of licensing for the use of the images.
The Supreme Court, file No. 30 Cdo 1154/2010 from 22.12.2011
The factual background: The image of a famous Czech skier was used on the leaflets of the company that sells the windows, doorway and others without the consent of the skier. She brought the claim and demanded the doubled price of her standard requested fee for use of her images. The Court granted the unjust infringement but had to consider the circulation of the leaflets, the scope of the infringement and financial situation of the infringing company.
The Supreme Court, file No. 30 Cdo 4505/2010 from 30.11.2011
Use of images from plastic surgery in porn magazine. The consent to take pictures and the use of the pictures was only given in respect of the surgery Clinique.
For general introduction of publicity right: The commercial appropriation of personal rights – Publicity Rights in the Czech republic Part 1 published on 29th April 2013