In a highly competitive market of fashion, with thousands of brands competing for their position products with limited delivery times and a great need to provide differentiating features is normal that some opt for the easy way out and seek inspiration from elements who consult or visit frequently.
This applies for example to the fashion magazines of the early twentieth century, very difficult to find and some of them fairly priced.
But the case of bloggers commented on the wonderful blog Delia Rodriguez "Trending Topics" has highlighted a problem, not so much related to intellectual property of the clothing designs, but the use of the image people in the clothing designs .
Apparently one of the suppliers of Inditex brand "Stradivarius" for his designs used the image of several bloggers (obviously the company will have a contract where the supplier is responsible to have the necessary rights and permissions for the marketing of clothing, so it will be appropriate for relapse who blame) well known.
In fact, the brand has already initiated action to remove clothing from its stores and, apparently, has tried to contact the appropriate asking bloggers to apologize.
But
really, no use or reason to demand the withdrawal or if compensation according to law if a English blogger would not be affected?
In a case like we said we could find two different aspects , first derivatives of the right to honor and self-image and another for the related intellectual property on the photographs which form the basis for subsequent designs.
From the point of view of the right to honor, their regulation is in the Organic Law 1 / 1982 and protects against unlawful interference, these being defined in the law itself, in Article 7.
unlawful interference between the honor is:
Six. The use of the name, voice or image of a person for advertising, commercial or similar nature.
This provision is key to the exploitation of image rights in many professions, because without a license can not be any use. However, there are some exceptions to be assessed, and capturing the image of a person not be a trespass if:
His capture, playback or publication by any means in the case of persons exercising a public office or profession for notoriety or public projection and the image is captured during a public or places open to the public.
The use of the caricature of these people, according to social use.
The graphical information about an event or occurrence age when the image of a particular person appears as merely incidental.
The latter assumption is not applicable to this case, but the other two do provide a first approximation.
As seen in both is the requirement that the person is a public office or exercising a profession for notoriety or public outreach. We could discuss this for the bloggers, if people are actually looking like that publicly, although I do not reach for it in this case, because otherwise there would practically limit.
not think it possible, despite being almost caricaturestos drawings, claiming the exception of caricature, and that goes beyond social use. The case of cartoons would be the magazine El Jueves, for example, but in this case does is give you an artistic look to the design, was consequently use Social cartoons.
The first hypothesis thinks in connection with freedom of expression and information with other aspects such as exploitation of the image on products and services, so I see not applicable.
Therefore, in this case, in my opinion, would be a trespass in honor of the person viewing the image reproduced on a shirt or a piece of clothing sold.
Regarding intellectual property, the issue also poses problems.
Consider that we would with just a photograph, in most cases, so that his regime is laid down in Article 128 of the LPI:
who takes a photograph or other reproduction produced by a process analogous to that one, when neither one or the other having the character of works in the book I enjoys the exclusive right to authorize reproduction, distribution and public communication in the same terms accorded by this Act to the authors of photographic works.
And here we find the issue of whether what the manufacturer is playing or is it a new work based on the picture. This is relevant because in the latter case one could speak of the right to change article 21 LPI:
1. The transformation of a work includes a translation, adaptation and any other changes in the way that results in a different work. Since
considered as a new work created from the amendment of another owner of the rights to the mere picture, in this case the blogger or who took the photo, would not have this right and its intellectual property would be injured, leaving only the route of the lesion of the right to honor.
, all that remains is a game theorist, but as the old legal aphorism "Exusatio non petita accusatio manifestations" and if they decide to apologize and remove the clothes ...
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