Actor Gael García's legal battle for improper use of his image
Mexican Minister Norma Lucía Piña will propose to her peers in the Supreme Court of Justice to protect actor Gael García in the case against Diageo Mexico.
Minister Norma Lucía Piña Hernández will propose to her peers in the First Chamber of the Supreme Court to grant Amparo to actor Gael García Bernal. This, in resolving two amparos related to the lawsuit filed by the actor in 2013 for the use, without his knowledge or consent, of his image in an advertising campaign of the Scotch whisky Johnnie Walker.
The actor Gael García accused that as part of such campaign, between September 3 and October 6, 2011, 22 television spots of the whisky were broadcast regarding his image, for such reason, he demanded compensation. Regarding the discussion expected on Wednesday at the Supreme Court of Justice, the legal representative of Diageo Mexico, the company sued by Gael García Bernal, warned that the constitutional court should reject Minister Piña's projects for being improper. It recalled that these are two appeals that, for the third time, have been accepted by Minister Piña Hernández.
"The project related to the appeals for review lacks legal consistency and incurs in several contradictions that show that this instance does not proceed," said Juan Ignacio Castañeda Alcocer, a lawyer for the corporation. He considered that there is procedural preclusion and it is not possible to raise arguments in this litigation that has to do with the use of the plaintiff's image. According to the litigant, the merits of the appeal were based on the fact that there are no precedents on the subject, and then he cited more than 20 rulings related to what is now being resolved.
Based on the minister's proposal, the First Chamber will analyze some aspects of the judgment of May 17, 2018, issued in the appeal 427/2016 and accumulated 428/2016 of the Fourth Collegiate Court in Civil Matters of the First Circuit. In both cases, Minister Piña Hernández will propose to uphold the plaintiff and dismiss the company's allegations in the sense that Article 216 Bis of the referred law is unconstitutional and generates legal uncertainty.
The company assures that based on this precept, a person may claim three concepts: material damage, moral damage, and damages, either in one or several lawsuits. "So much so that in this case the plaintiff (Gael García Bernal) sued for the payment of material damage and compensation for damages before a federal court and the payment of moral damages before a common court," said the company's defense.
The Minister considers that the right to one's image is a fundamental right with specific protection provided for in the Federal Copyright Law and for this reason, she states that Article 216 Bis of said law is constitutional. "The right to one's image is a fundamental right that has several dimensions, such as the civil and the commercial or commercial, and the latter is protected by the Federal Copyright Law," states the draft judgment of Minister Piña Hernández.
She warns that the aforementioned article 216 Bis is not unconstitutional nor does it generate legal uncertainty. "Although the first paragraph of such provision indeed refers to the reparation of the material and/or moral damages as well as the indemnification for damages, this cannot be interpreted in the sense that the respective jurisdictional authority may order twice the payment of the same benefit", she states. He indicates that the purpose of the precept is to guarantee the right to fair compensation.
With information from El Financiero
