Selling pictures of the Pope

The Vatican is the smallest independent state. But to the faithful, it could be the most powerful.

When the Vatican released a statement about its exclusive “right to ensure the respect due to the successors of Peter”, mortals, specially the legalists, immediately began silently grinding what rights are really involved.

The objective of the declaration is to protect the identity of the Pope from the unauthorized use of his name, image, or symbol for ends that have little or nothing to do with the Catholic Church.

Can corporate well-wishers put up billboards greeting the Pope? Can t-shirts be sold on the streets with the Pope’s picture printed on it? Can images of the Pope be sold to commemorate his most valuable visit to the Philippines?

It is quite easy to bring judgment to these questions. But the uniqueness of the figure of the Pope, and the (Catholic) organization involved almost makes for a no right or wrong answer.

Let’s park the intangible rights around the Pope’s image for a while and try to understand more of the earthly issues before reverting.

If the person involved is a politician, an entertainer, or an ordinary man on the street, the relevant right involved over the use of that person’s image is the right of publicity. To explain this, I would not confuse it with the right to privacy (which I discussed in my column last October 2014), although it is closely related.

If copyright is the right over one’s creations, the right of publicity, in a way can be the right over something you did not create–such as your face or name–but over its value that you may have enhanced by what you have done.

It is a property right in the sense that only the owner can profit from his own publicity unless he allows others to do so. US courts have said that right of publicity grants a person an exclusive right to control the commercial value of his name and likeness and prevent others from exploiting without permission. At this point, it becomes more understandable why many are unfamiliar with this right. We share the general experience that no one offered us money to use our picture. And many would just be too happy to see their pictures in public without their permission, like a momentary gift of fame.

Such is not the case with people who are already famous. The case of Manny Pacquiao is one in point. He sued a video microphone company for using his image for promotion. True, it was one of the sponsors of his fight with Morales in 2002. Along with other sponsors, the company released congratulatory messages as advertisements. But what Pacquiao did not authorize was for the company to give free video CDs of the fight along with the purchase of their video microphone, and for advertising the promotion with Pacquiao’s image and name. The right of publicity of Pacquiao was upheld by the courts.

When does freedom of expression or art overcome publicity rights? This was interestingly taken up in a case involving World Wrestling Entertainment (WWE), the popular wrestling sport “telenovela” where the latter sued Big Dog, a sportswear company that used WWE superstar images but gave them dog faces and dog names. For example, Undertaker was called Underdogger, and the dog face would have his long hair and likeness. The US court did not uphold WWE’s claim to the right of publicity because the graphics were artistic expressions that use imitation as a style to make fun of the characters. And there is public interest to be protected because while the artwork is irreverent, it is funny and delivers a message about over-promoted pop phenomenon. Besides, people are not stupid and they know the wrestlers are not really dogs.

In certain instances, the use of a picture of a non-public figure can also be problematic. Say you are a reporter doing a bit on drug use, and you chanced upon your neighbor under the influence of drugs. You took his picture and published it alongside your story about society. There could be criminal implications concerning defamation. And while truth is a defense against defamation, there are civil damages that can be claimed by the individual who has been unduly compromised by the unauthorized photo made public.

Despite the lack of special statute for publicity rights, Article 19 of the Civil Code provides a timeless guide. Every person must, in the exercise of his rights and performance of his duties, act with justice, give everyone his due and observe honesty and good faith.

In respect of the use of the image of the Pope, one can make an argument that it is made in good faith if the primary intention is to remind the people about the faith that the Pope promotes. Outside of the Vatican declaration, the Pope as a most popular public figure has publicity rights, which he may or may not vigorously protect. The Cardinal said he is not worried of the Pope’s security because he has five million bodyguards. To the faithful, the Pope’s image is less vulnerable to infractions. Because the real protection of the Pope’s trademarks comes not from local or international law.

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Alexander B. Cabrera is the chairman and senior partner of Isla Lipana & Co./PwC Philippines. He also chairs the tax committee of the Management Association of the Philippines (MAP). Email your comments and questions to [email protected]. This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.