by Abraham Díaz
In a recent landmark case, the producers of the most-seen Mexican documentary film were sued by relatives of a deceased person, whose corpse was briefly showed at the beginning of their documentary film.
Complainants were alleging the unauthorized use of the “image” of the deceased person on grounds of Section 87 of the Mexican Copyright Law (MCL), which sets forth that the “portrait” of a person can only be used or published with the express consent of the portrayed person.
Historically, this provision has caused confusion as to the notion of “portrait”, and whether or not it is a synonym of “image”. There has also been confusion because in Mexico image rights are regulated in the civil law, as personality rights, which makes it awkward having a special rule concerning image rights in the MCL.
This caused complainants to file an infringement action with the Mexican Institute of Industrial Property (IMPI), and in parallel, a civil action before the civil courts.
Since Section 216 bis of the MCL contemplates that indemnification for damages and moral damages derived from any violation to the rights conferred by the MCL should in no case be less than the 40% of the sales price of the original product, complainants were claiming 40% of the revenues obtained from the exhibition of the documentary film in movie theatres, as well as from its commercialization in DVD format.
However, the final part of Section 87 of the MCL also provides that the consent of the portrayed person is not necessary when the portrayed person represents a minor part of the set, or when the picture is taken in public places and for informative and journalistic purposes. This exception was opposed by the film makers.
Based on this exception IMPI has denied infringements against the producers, considering that the picture of the corpse appearing in the documentary film was taken in a public place and for informative and journalistic purposes.
Many items still remain unstudied in this case. However, this is a remarkable precedent in favor of the industry of documentary film-makers in Mexico.
Source Managing Intellectual Property Magazine Chinese, June 2013