Limitations of Autonomy of the Will in Conventions of Exploitation of Personality Rights
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Limitations of Autonomy of the Will in Conventions of Exploitation of Personality Rights Thibault Gisclard
Published online: 20 December 2013 Max Planck Institute for Intellectual Property and Competition Law, Munich 2013
Abstract In the matter of license agreements of personality rights, an analysis of the legislation and case law of more than 20 countries around the world shows a strong tendency to protect persons against themselves, in order to avoid conventions that might dispossess them of their personality rights. Indeed, personality rights are inalienable, since their economic and moral dimensions are strongly intertwined. One of the most important limitations of autonomy of the will lies in the specialty principle. At the very least, this means that personality rights license agreements are interpreted in a restrictive manner. However, some countries have a much more demanding way to see the specialty principle, by requiring the convention to be very narrowly delimited in its scope, in order to be valid. Therefore, the nature of the licensed data, the purpose of the license, the mediums, the duration, and the geographical scope must be narrowly and precisely defined within the agreement. Another limitation of autonomy of the will lies in the need to give the licensor financial compensation. Although the clauses concerning royalties have only rarely been exposed to judicial scrutiny, it seems that, at least in some countries, a minimum financial compensation should be paid for the rights that have been licensed. Nevertheless, this royalty should not necessarily be proportional to the profits generated. Keywords Personality rights Right of publicity License agreements Restrictive interpretation Royalties Comparative law
T. Gisclard (&) Docteur en droit (Paris); Member of the European Law Institute Universite´ Paris 1 Panthe´on Sorbonne, 12 place du Panthe´on, 75005 Paris, France e-mail: [email protected]
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1 Introduction Should the principle Volenti non fit iniuria1 mean that personality rights may be licensed without any limitations? Elements of one’s personality, such as name, image, likeness, voice, privacy, and more generally elements of one’s persona, have been protected for a long time through a right of privacy, as well as in general or specific personality rights, when their unauthorized use causes moral damage to the person. However, since the middle of the twentieth century, there have been an increasing number of people – often, but not always, famous – who have decided to exploit their personality for commercial purposes. The right to exploit oneself and to prevent unauthorized business use of one’s personality is known in the United States as the right of publicity.2 Business use includes sponsoring, merchandising, or endorsement, but also use in entertainment or advertising, which is the raison d’eˆtre of the work of an actress or a photo model. Such exploitation for business purposes requires the consent of the person whose personali
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