Advertising: penalties for companies that use people in their ad campaigns without authorization

May 30, 2017

Advertising has become a key launching strategy for business growth. By using it, businesses attract new customers, gain consumer loyalty, and broaden their economic horizons.

On a regular basis, advertising strategies contain images of people who identify the brand, as well as the audience they are trying to capture. What most companies don’t know is that this entire process needs to be handled with the proper legal counsel. 

Business owners must be sure to obtain the consent of the models used in their companies’ advertising. If not, they can face lawsuits for compensation for moral and economic damages to the model. These fines could be huge, as much as $1.475 billion pesos, according to the Superintendence of Industry and Commerce (SIC) as stated in article 23 of Law 1581 from 2012.

In the past, here in Colombia, the subject of personal image was addressed by copyright, constitutional jurisdiction, and trademark regulations. As Law 1581 enters into effect, personal image is now starting to be treated as personal information. New parameters were created for licensing, use and sanctions to address the inadequate regulations in the past. 

What is meant by the image?

When a company launches an advertising campaign, they typically use photographs, videos, or other audiovisual clips that capture the image of a person, famous or not. In addition to their physical appearance, other characteristics like their voice, name, information, or external aspects may be involved. These identify the individual in their social environment and by those that know them. 

Advertising campaigns occasionally use a person who imitates the physical or social appearance of a famous person. In this case, legally, they are still utilizing the image of the famous person being imitated. As a result, the company can be sued for the use of an unauthorized image. 

How can you use a person’s image in your company’s advertising without breaking the law?

It is important that for identifiable images of people in advertising, these people grant their consent to the company. In Colombia, image rights are considered personal information and a basic autonomous right. Therefore, businesses need to be get authorization for their use, specifically describing formats such as: the purpose, media, marketing, reach, time, and others. 

Is image authorization the same as a license to use photographs or videos?

No, it is common for companies to believe that the license that the photographer gives to use photos or videos is enough. In reality, it is important to verify that the model also gives consent for their image to appear in advertising material.

Can I modify someone’s image for advertising purposes?

Yes, as long as said modification has been authorized by the model and will not affect their reputation.

Are there any cases in which no authorization is required to use an image?

Yes. In some cases, advertising can include images from public events in which various unidentifiable people appear. Consent is unnecessary in these cases. The law also authorizes the use of a person’s image for journalistic, news, scientific, artistic, educational, or cultural purposes as long as it will not affect their reputation.

What should I keep in mind for these authorizations?

The most important thing is creativity! Imagine the possible uses and explain them in detail.

Contact: 

Tatiana Carrillo 

tcarrillo@lloredacamacho.com 

Julián David Ruiz Rondan 

jruiz@lloredacamacho.com

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