Sport Image Rights in Spain

Article excerpt

1. Introduction

Over the last 20 years, professional sport (as a source of entertainment and business) has undergone spectacular growth, in large part due to the development and exploitation of one of the essential rights of human personality: the right to one's own image. Paradoxically, a right with a basically philosophical content, inherent to the legal and social status of the human personality as an external element, has become the financial manna of spectator sport, which today is something more than that.

As stated by Professor Parejo Alfonso (1) in the prologue of the main book on image rights in Sport ("Los derechos de imagen en el ambito del deporte profesional (Especial Referencia al Futbol)" by the professors Palomar Olmeda and Descalzo Gonzalez; mainly due to the evolution of technology, economic exploitation rights deriving from the right to one's own image have driven the spectacular evolution that sport in general and football in particular have experienced over the past few years, becoming a matter of enormous social and economic importance, due to television and other forms of media.

Therefore the significance of this comparative study of sport image rights is obvious, particularly if we take into account the incomplete and sector-specific regulation of them in Spain, which the different operators in the sector have taken advantage of, using legal cunning, to fill in the gaps by means of complex and unusual legal formulas that serve their own interests. Therefore the patrimonial aspect of this right has been developed privately through hiring (employment and commercial), by means of which the different operators in the sport market (sportspeople, clubs, Sports Corporations, companies, etc.) have managed to perfect complex legal relationships, always tending to reduce the tax pressure on the income they receive from their respective image rights.

Hence the difficulty of this study, not only because it is more about casuistry than doctrine, but also because of the nature of the concept of "image rights" which, as with the majority of the so-called personality rights, far from having a universal and pacific definition, is often confused with other related fundamental rights, such as the right to dignity and personal and family privacy.

2. The right to one's own image: delimitation, content and regulation.

As already stated, there is not a single unequivocal concept of what is understood as the right to one's own image and it can be said that its content and definition varies depending on the level of scientific autonomy that different authors attribute to this right. In this sense, some consider that the right to one's own image forms part of a person's right to dignity, whilst others state that it forms part of the right to privacy, and others include it within the more general principle of respect for human beings. These digressions have sometimes even transcended the case law of the Spanish Constitutional Court (2).

As stated by the professor Blasco Gasco (3), this confusion may have been added to by the fact that "the right to one's own image is not expressly recognised in all constitutions or in general in the European constitution, including the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4th November 1950 and the Charter of Fundamental Rights of the European Union dated 7th December 2000, but rather, as has been stated; it is protected by the general principle of respect for human beings or respect for one's life and matters related to personal privacy (article 8 of the Convention and article 7 of the Charter)."

Therefore, although it is true that de lege lata it appears that there is a legal lack of definition with regard to the right to one's own image, this should not lead us to erroneously to think that it does not have its own legal autonomy as, it does not only have this characteristic but rather, as explained by professor BLASCO GASCO in the aforementioned work, this is manifested in three different ways, given that (i) the right to one's own image has its own nomen iuris, (ii) its own conceptual autonomy (developed by means of the Case Law of the Supreme Court and the Constitutional Court) and, furthermore (iii) it also has legal autonomy, not only as a right consecrated in article 18. …