Notes On Copyright And Use Of Personal Images In Advertising Products

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Notes On Copyright And Use Of Personal Images In Advertising Products

Advertising, attracting customers is always one of the top priorities of any business. Depending on the business sector, scale, and type of customers, each company will invest in advertising with different media and advertising products, including, but not limited to: Television commercials, photos of advertisements, billboards, banners, product packaging, etc. The use of images and influence of celebrities, to advertise products and brands of businesses is no longer a strange thing in marketing, and it even becomes the most favorable marketing strategy for its high efficiency. Son Tung is the brand ambassador for Biti’s, and Go-Viet, or Minh Hang is the brand ambassador of Citigym, etc., are typical examples of the enterprises using personal reputation and influence to attract customers.
 
But, in fact, not many enterprises understand their rights and obligations when using images of individuals for advertising, as well as the legal consequences that may arise when using personal images to advertise illegally. Walking along the streets in the downtown area of major cities in Vietnam, it is not difficult to encounter the beauty salons that use the image of Korean artists as a testament to their service efficiency, or clothing shops use images of famous individuals to advertise their products, etc. However, among all of those stores, how many of them are actually allowed to use personal images for advertising?
 
Newspapers and social media recently raised a lot of disputes on the use of personal images that occurred between business entities and celebrities, and the most recently mentioned case is the actor Truong The Vinh requires a clothing store to pay royalties for using his image for advertising purposes. With the rapid development of the media, along with the increase in individual’s right awareness, if business entities do not change their minds and perspectives on the use of personal images for advertising as well as equip themselves with basic legal knowledge of the individual’s image rights, disputes on this issue will raise even more. This article is expected to provide readers in general and commercial entities who use photos of individuals for advertising in particular, an overview of legal issues to note, to avoid risks and disputes.

In promoting and introducing products through personal images, traders need to pay attention to at least two following issues: the rights on personal images and ownership of advertising products.

Pursuant to the law, the right of an individual to his/her image is a civil right, Article 32 of the Civil Code 2015 stipulates that an individual has the right to his or her image and the use of individual image must be agreed by that person unless otherwise prescribed by law, and anyone uses personal image for commercial purpose must pay royalty to the image holder, unless otherwise agreed by the parties. Accordingly, civil law also stipulates that the use of personal images by without his/her permission is only limited to images obtained from public activities, including conferences, seminars, and sport competitions, arts performance and other public activities without damaging the honor, dignity, and prestige of the image holder or using personal images for national and public benefits. The entities violate the personal image rights in advertising activities might face sanctions against administrative violations with a fine up to 30 million VND, compensation individuals whose images are illegally used or more seriously, be handled as criminals if the use of personal image affects the prestige, dignity, and honor of such person.

In short, the use of personal images, as mentioned above, if not belong to the foregoing exceptions, must be agreed by such person and must be paid if the image is used for commercial purposes. Therefore, with the example of singer Truong The Vinh mentioned above, the clothing store needs to ask Truong The Vinh permission and pay royalties for using his image.

In addition to the problem of asking for permission to use personal images as mentioned above, advertising products related to the use of personal images are usually displayed through the following forms: photos, television commercials, etc. These products are also recordings, photographic works, or artwork, etc., whose copyright or related rights is protected under the intellectual property law.
 

Pursuant to the provisions of the law on copyright, related rights, the currently valid intellectual property law prescribes the owner of recordings, photographic works and artwork used for advertising may be individuals who directly create the work or organizations and individuals that invest in finance for creation of such works or other organizations and individuals that are transferred the ownership. When exploiting and using the above works, depends on each kind of works, other organizations and individuals will have to obtain permission and pay royalties (for photography works, artworks) or only have to pay royalties (for published audio/video recordings) to the owners/authors of copyrights.

For example, as you may know, the singer Son Tung is Biti’s brand representative, if you want to use Son Tung’s photos (taken by Biti’s and advertised for their products) for advertising your products. To whom do you have to ask for permission and pay royalties? – Biti’s or the singer Son Tung? As analyzed above, Biti’s, in this case, is the financial investor for Son Tung’s photography and also comes into an agreement with Son Tung for using his image for advertisements. Therefore, Biti’s company is the owner of such photos.

In short, business entities who want to use personal images need to separate the personal rights under the provisions of civil law and ownership of intellectual property under the law on intellectual property to have appropriate measures to the objects that they want to use. The download and use of images and recordings on the internet to use in their business activities is also a matter that traders should consider carefully because you shall not know when the owner of such may “suddenly” appear and requires to be paid “royalty.”

If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.

This article is for general information only and is not a substitute for legal advice.