THE what and Right of Image?

1. CONCEPT

Image rights are an individual right that ensures that personal images are not exposed without prior authorization, protecting against any potential violation. Misuse of an image for commercial purposes or that tarnishes an individual's honor or reputation in society may result in civil and criminal consequences.

In this aspect, the right to Image consists of the legal protection of the individual's physical personality, safeguarding their individuality, their characterizing features, such as physiognomy, profile, voice, attitude, gestures, smile, as well as the representation of these aspects through photographs, paintings, sculptures, drawings, among others.

It is a personal right, non-transferable and irrevocable, and cannot be voluntarily limited. Its use may only be made with authorization.

It is provided for in article 5, item X of the Federal Constitution, establishing the inviolability of people's images, ensuring the right to compensation for moral or material damages resulting from its violation.

The Civil Code also regulates Image Rights in its Article 20, determining that the dissemination of writings, the transmission of words, or the publication, exhibition or use of a person's image may be prohibited, at their request and without prejudice to any compensation that may be due, if they affect their honor, good reputation or respectability, or if they are intended for commercial purposes.

2. EXCEPTIONALITIES

The exception to the use of the Image comes from the authorization by the owner, or from the need for the administration of justice, as well as the maintenance of public order.

Art. 20 – Unless authorized, or if necessary for the administration of justice or the maintenance of public order, the disclosure of writings, the transmission of words, or the publication, exhibition or use of a person's image may be prohibited, at their request and without prejudice to any compensation that may be due, if they affect their honor, good reputation, or respectability, or if they are intended for commercial purposes.

Sole Paragraph: In the case of a deceased or absent person, the spouse, ascendants or descendants are legitimate parties to request this protection (BRASIL, 2002, p. 3).

In this sense, through the reading of the sole paragraph of art. 20, an important characteristic of the right to image within personality rights becomes evident: the ability to transmit it to heirs. The image lasts beyond the person's life, remaining in people's memory, and it is the heirs' right to protect this image (BORGES, 2004, p. 2).

Through the understanding of the courts, some other exceptional hypotheses of the standard rule of image rights are established, such as images obtained in public places, of general and collective use, such as beaches and shopping malls, in which the person is a detail in the photograph. The use of the image of well-known public figures such as politicians, athletes, and artists is also permitted, as long as they are not used for commercial purposes and do not violate their rights. Finally, images of high public interest may also be broadcast in news reports covering relevant events, subject to the peculiarities of each case (KLAFKE, LIMA, MORAIS, GUIMARÃES, 2019, p. 12).

3. AUTHORIZATION METHODS

Novo (2019) teaches that authorization for the use of an image can occur in three ways: through payment and tacit consent, there may be tacit consent and free of charge; through payment and express consent, or with express and free consent; and finally, conditioned on financial gratification.

4. WEIGHTING RIGHTS

Beltrame (2020) addresses Statement No. 279 of the IV Civil Law Conference, which states that there may be a balance between rights, as in the case of the right to image and the right to information, without resulting in a violation of the image.

Statement No. 279 of the IV Civil Law Conference – Image protection must be weighed against other constitutionally protected interests, especially in light of the right to broad access to information and freedom of the press. In the event of a conflict, the notoriety of the person portrayed and the facts covered will be taken into account, as well as their veracity and, furthermore, the characteristics of their use (commercial, informative, biographical), favoring measures that do not restrict the dissemination of information (FEDERAL COUNCIL OF JUSTICE, 2012, p. 278).

The protection of image rights can, in some cases, be relativized, authorizing the use of the image by third parties, without express authorization and without this meaning the obligation to compensate (BELTRAME, 2020, p. 5).

The STF, in the judgment of Direct Action of Unconstitutionality No. 4815, when weighing the inherent rights of freedom of expression, thought, artistic creation and scientific production with the right to image, understood that consent from a person whose biography is related to literary or audiovisual biographical works is not required (BELTRAME, 2020, p. 6).

Thus, we have seen that the Right to Image consists of a fundamental legal asset, an important personal prerogative of each individual, subject to punishment if used improperly.

5. REFERENCES

BELTRAME, Renan. Learn more about the right to image, its constitutional protection, and exceptions. Aurum, [sl], June 30, 2020. Available at: https://www.aurum.com.br/blog/direito-de-imagem/. Accessed on: August 9, 2020.

BRAZIL. Civil Code: Law No. 10,406/2002. Official Gazette of the Union. Available at http://www.planalto.gov.br/ccivil_03/leis/2002/L10406.htm. Accessed on: August 9, 2020.

BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Brasília, DF: Presidency of the Republic, 1988. Available at: http://www.planalto.gov.br/ccivil_03/Constituicao/ Constituiçao.htm. Accessed on: August 9, 2020.

FEDERAL COUNCIL OF JUSTICE. IV Civil Law Conferences. Center for Judicial Studies, [sl], 2012.

NEW, Benigno Núñez. The Right to Image. Jus Navigandi, [sl], 2019. Available at: https://jus.com.br/artigos/75081/o-direito-de-imagem. Accessed on: August 9, 2020.

GUIMARÃES, TB ; LIMA, SH ; KLAFKE, G. F ; MORAIS, CAM . Image and Rights on the Web. Getúlio Vargas Foundation, 2019.