An image rights licensing agreement may be terminated at any time at the free will of either party. However, the party that revokes consent may have to pay indemnification for any loss or damage caused.

Any student of film or audiovisual law knows how important it is for actors (and anyone who appears in a production) to sign an image rights licensing agreement before shooting a movie, short film, video clip, etc. What these students may not know is that consent can be revoked at any time.

Yes, that’s right. You may have invested a huge amount of money, not to mention time, effort, hope, worry…just to have some big-name star get upset because they don’t like how their freckles look on camera and revoke consent, bringing the entire production to a screeching halt.

Under article 2 of Organic Law 1/1982, of May 5, 1982, on the protection of the right to honor, personal and family privacy and personal portrayal (Law 1/82), the express consent of the data subject must be obtained in order to be able to use their image.

And even if consent is obtained, it can be revoked at any time, as we discuss later on in this article. In fact, data subjects can revoke consent for use of their image at any time and for any reason; they cannot be denied that right and it prevails over any contractual objections.

By law, an image rights licensing agreement may be terminated at any time at the free will of either party and there is no clause that can be inserted in the agreement to prevent this from happening. Although the principle of pacta sunt servanda (“agreements must be kept”) prevails in Spanish law, this fundamental element of contractual law cannot be applied in these cases. This was confirmed by the Supreme Court in the Bellí case (Judgment 266/2016, of April 21, 2016).

However, to not leave image rights licensees completely high and dry, article 2 of Law 1/82 stipulates that the revoking party must pay indemnification for any loss and damage caused. Returning to our big-name star, if they have been handsomely paid for their role and the movie is already showing in theaters when consent is revoked, they must pay damages (including justified expectation of profit).

This begs a number of questions: Do the damages have to be paid before or after revoking consent? Is revocation subject, at least, to an indemnity guarantee? Can there be imminent effects even if the indemnification has not been paid? It is no trivial matter, since the movie might be pulled from theaters from one day to the next, leaving producers without a cent to their name and with little hope of receiving anything in the near future. And case law on this point is woefully scarce.

The Constitutional Court ruled on the matter in the Ana Obregón case (Judgment 117/1994, of April 25, 1994), which revolved around a photo shoot in which the famous actress and variety artist licensed the photographer to distribute the images “for journalistic purposes.” Some time later, and after the photos had been used various times, the images were licensed to Playboy magazine for their subsequent publication. At an advanced stage of the printing process, the actress notified Playboy that she was revoking her consent, forbidding the sale of any copies. Since the print run was practically finished, Playboy decided to go ahead and publish the magazine.

Ms. Obregón filed a complaint with Barcelona Court of First Instance no. 2, alleging unlawful intrusion into her right of personal portrayal. The Court of First Instance, the Provincial Appellate Court and the Supreme Court all rejected her claims and the case was referred, via an appeal for protection of constitutional rights, to the Constitutional Court.

After analyzing the case, the Constitutional Court concluded that the right of revocation (i) does not require any specific reason to be given when exercised; (ii) has no time limit, meaning it can be exercised at any time; and (iii) its effects must be limited to use of the image once consent has been revoked. This third point is what defeated Ms. Obregón’s claims.

Going back to our movie example, our big-name star cannot expect the fact that their unsightly freckles were seen on screen by thousands of people before consent was revoked (let’s say the movie was a box office smash on its opening weekend) to be deemed an invasion of their right to personal portrayal.

In the Ana Obregón case, the Constitutional Court accepted the short notice with which her revocation was notified –just days before the monthly publication date of Playboy magazine– as an argument in favor of refusing to order payment of damages, even though Playboy ultimately published the issue containing the photographs. The judges deemed that the publication of the magazine “was not a one-off or instantaneous event, but rather a process made up of several successive stages” and that it was “an event that –in light of its plural and successive content– had to be deemed practically concluded when revocation took place.”

The Constitutional Court also held that for consent to be lawfully revoked, indemnification must be paid for any loss or damage caused, or an indemnity guarantee must at least be given. Since Ms. Obregón did not pay any indemnification or offer any guarantee of its payment at any time, the Constitutional Court had no option but to reject her appeal.

In light of this judgment, we can conclude that the revocation of a license to use image rights is limited to subsequent uses and subject to effective indemnification of the damage and loss caused (or, at least, an indemnity guarantee).

Generally speaking, the indemnification will include the return of any amounts initially received for having licensed the image rights; however it all depends on the circumstances of each case. Therefore, dear film students, if you aren’t able to pay your actors, at least make sure to get along with them.

Fernando Álvarez de Toledo

Intellectual Property Department