The Supreme Court of Justice of the Nation has developed a doctrine in which it recognizes the right to one’s own image as a fundamental right derived from human dignity, a concept expressly mentioned in Article 1 of the Constitution. According to the Supreme Court, human dignity is the basis for all other fundamental rights, including very personal rights, such as the right to life, to physical and psychological integrity, to honor, to privacy, to the free development of personality, to civil status, among others.
In terms of the rulings issued by the Supreme Court, the image is a fundamental element of identification of the person, it is the external projection of his physical appearance, the graphic representation of the human figure and/or his main characteristics that are part of his identity.
In this sense, the human right to one’s own image protects the right of individuals to: (i) to freely choose the image with which he/she wants to appear before society, and (ii) to decide the uses or purposes for which it is intended to give the manifestations of its image.
Although it is not an author’s right, the Federal Copyright Law contains provisions that protect the right to one’s own image:
- Article 87 regulates the use that may be made of the “portrait” of a person by specifying that the express consent of such person is required.
- Articles 213 and 216 Bis contemplate the possibility of bringing a legal action for the purpose of seeking compensation for the damage caused by the infringement of the right to the image of persons.
- Article 231, section II, provides that the use of a person’s image without his or her authorization, for profit, constitutes a commercial infringement.
In relation to the provisions of Article 87 cited above, it is important to mention that in a recently decided case, the First Chamber of the Supreme Court held that the term “portrait” included in said legal provision should not be limited to the concept of “photograph”, but should be extended to any graphic manifestation or representation of the person that forms part of his or her identity. Furthermore, Article 16 of the Law on Civil Liability for the Protection of the Right to Privacy, Honor and Self-Image in the Federal District (now Mexico City) defines image as the “identifiable reproduction of a person’s physical features on any material medium”.
According to the interpretation of our Supreme Court, individuals are entitled to sue for the payment of compensation for damages caused in the event that third parties capture, reproduce or publish their figure or image without their authorization, with the understanding that the corresponding amount must be in accordance with the parameter of fair compensation developed by the Supreme Court.
Roberto Altamirano
