Will Smith, Kylian Mbappé… image rights put to the test by changes in society

What remains of the last Oscars ceremony, at the end of March? Mainly the image of a comedian giving a slap to another after a joke about his wife. The visual setting is basic: almost nothing but two single men on stage, dressed almost identically. But this scene, which stunned the spectators, will remain as the striking image of the 94th edition of the ceremony rewarding the best films of the past year. Especially since ten days later, the author of the slap saw himself excluded from any ceremony for 10 years – although his award won that night was not taken away from him.

Also at the end of March, in France, the international striker of Paris Saint-Germain Kylian Mbappé refused to be associated with the image of the partners and sponsors of the France teamdespite the existence of a contract between the French Football Federation (FFF) and the companies that financially support the French team.

These two events show how much the image as an object of law constitutes a real challenge for legal science. The media and social networks have only contributed to strengthening this hold of the image on the law. In addition to new consumer behavior, the creators and generators of images (those who make their own image an object of law) are indeed participating in an explosion and diversification of visual forms, which in turn deeply question the law.

Visible and invisible

In an image, there is both the visible and the invisible. In France, the visible part, that which is perceptible by the eye, has been regulated by the principles of image rights which is part of the general framework of the right to privacy. Thus, any person, whatever their rank, birth, fortune, present or future functions, has the right to respect for their private life. This principle was in particular enshrined in the judgment of the Versailles Court of Appeal of October 22, 2005 and by the decision of the Court of Cassation of February 27, 2007, respectively concerning the image of Johnny Hallyday and Prince Albert of Monaco.

The slap, the defining image of the 94th Academy Awards.
Robyn Beck/AFP

On the other hand, the invisible part is more complex and therefore difficult to grasp for the law. The example of the image of football players illustrates this dichotomy well. As with a large number of showbiz or entertainment stars, the image of sportsmen – and therefore more particularly of football players – has become a common source of use for commercial purposes.

Here the two dimensions of the image intersect. On the one hand, the very simple image of a football player on a thumbnail, representation of the perceptible and concrete reality of the player, protected by image rights. From the moment a person is recognizable, it is necessary to have their written consent to use their image, whatever the purposes of dissemination, publication, reproduction or marketing. However, despite its apparent simplicity, this rule has not avoided legal proceedings against companies that may have misused the image of football players. the judgment of the Panini thumbnail editorpursued by several players, is thus expected for this year 2022.

The second dimension of the image therefore concerns its invisible part: the inner representation made by each person who looks at the image and who evaluates it according to their own convictions, beliefs and values. What legal tool is used to protect or regulate this image perceived by image consumers? The right to the image shows its limits here because it establishes a protective framework limited to “reproduction” and not to perception. Even if it seems implicit that the representation results from the diffusion, this representation can create a reality other than that expected during the diffusion.

Rethink the image

Certainly, it is not possible to regulate the perception that each person has of an image. Nevertheless, it is possible to anticipate it and, in certain cases, to direct it. All marketing experts know this well. The use of an image (as well as a specific color or music) associated with a product influences the purchase decision.

Some public figures, and particularly football players, are very attached to this dimension of the representation of their image in the collective imagination. Because they know well that the association of their image with an object can create an erroneous representation of their own person within the general public.

Faced with the impossibility for the objective right to regulate this dimension, the protection of the perception of the image is done by the contractual way, which allows the people involved to freely choose the framework where their image will be diffused. However, in certain situations as in the case of Kylian Mbappé, this option also shows its limits.

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The publisher of collectible stickers Panini is now being sued by several players for infringement of image rights.
Bertrand Guay/AFP

The principle being that, for any “public person”, that is to say any person who has acquired a certain notoriety, either because of his profession or his activity, or because he is involved in the news , the right to the image is counterbalanced by the necessities of information. The legal framework is thus clearly established. In the name of the right to information, images may be published without prior authorization as long as they relate to the public activity of the person concerned.

In 2008, the affair which opposed the presidential couple composed of Nicolas Sarkozy and Carla Bruni to Ryanair also illustrated this principle. The airline, to which justice was wrong, had released an advertisement with an unauthorized photograph of the couple with the slogan: “With Ryanair, all my family can come to attend my wedding”. As a model, Carla Bruni’s professional occupation is the exploitation of her image. Thus, the management of this activity is done through the contractual channel. “A photo of Carla Bruni is 500,000 euros”, had notably underlined his lawyer. In addition to the money involved, it was also about controlling the distribution of its image (media, channels, etc.).

At the level of European law, the European Court of Human Rights has ratified the principle through a large number of judgments: “The image of an individual is one of the main personality attributes, because it expresses its originality and allows it to differentiate itself from its peers”, she thus establishes in the judgment “von Hannover v. Germany (No. 2)” of the Grand Chamber of 7 February 2012. This case reveals another complex legal concept that the German Constitutional Court had put forward: the distinction between an “absolute” personality in the contemporary history of a “relative” personality.

More broadly, however, this legislative framework for image protection has for years lagged behind the exponential progress of new technologies. In the United States, the case “Alison Chang v/Virgin & Flickr”, relating to the use of photos on the Flickr platform in 2007, had already highlighted this issue which, over time, has become a challenge. urgent for the law.

While waiting for a new legal tool which makes it possible to guarantee the protection of the right to the image in its two dimensions, a reflection on the new uses of the image in a “Digital Republic” where technology is shaking up the fundamental principles law seems urgent. This public debate must include artificial intelligence, NFTs (unique virtual tokens) and all the other technologies that are disrupting our daily lives and the legal world as a whole.

The ban on Will Smith’s participation in any ceremony for 10 years is a clear example of the application of image rights to its visible part. But the verdict on the invisible part is a form of life sentence, because now the image of Will Smith will be permanently associated with the slap given to his colleague.

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Will Smith, Kylian Mbappé… image rights put to the test by changes in society

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