Using a celebrity's face for promotion, is it allowed?
Hj. Salmi in her journal titled “The Effectiveness of Implementation of Law Number 28 of 2014 concerning Copyrights in the Field of Photography in Palopo City”, revealed that the bridal couple Anti and Hasrul refused to allow their wedding pictures to be displayed at the photographer's place as a form of promotion of the photographer's work. However, the photographer didn’t take down their pictures even after they expressed their objection.
Unfortunately, we can still find many cases like this. There are many brands that use portraits of a person or celebrity without permission as a means of promotion.
A sandwich outlet even uses portraits and the name of South Korean actor Gong Yoo in its menu. The store didn't stop there, it even edited clips of the actor's videos to promote the menu, as if the actor is working with the brand.
This type of action is usually done by fans for entertainment purposes. However, it is different if the action is carried out by a brand because there is a commercial purpose that could harm the actor economically.
This is similar to the case experienced by YouTuber Jerome Polin, where his portrait was used by a shipping services company without permission. At first, the protest was relayed by his manager, Jehian Panangian Sijabat, who questioned why the company used his talent’s portrait without permission. Jerome also spoke about this on his personal Twitter account.
This then raises pros and cons, as well as the question of what is the difference between using someone's portrait for entertainment and promotion?
Using someone's face for promotional purposes
Using someone's portrait without permission is prohibited by law. Article 12 paragraph (1) of the Copyright Law stipulates that "everyone is prohibited from making commercial use of the portraits they make for the purposes of commercial advertisements or advertising without a written consent of the person being photographed or their beneficiaries".
The second paragraph of the article explains that if the portrait shows two or more people, the party that will use it must obtain written approval from every individual whose faces are in the portrait.
It should be understood that this requirement only applies to pictures with human objects or what are known in the Copyright Law as "portraits". The Copyright Law distinguishes "photography" from "portrait". Photos have a wider scope than portraits because portraits only focus on human objects. However, both have something in common, namely works taken using a camera.
The copyright for portraits and photos is held by the photographer, but using them for commercial purposes requires approval from the person whose face is in the portrait.
The Copyright Law also clarifies the purposes of commercial advertisement and advertising, namely to include portraits in advertisements, banners, billboards, calendars and pamphlets. Therefore, using someone's portrait without permission for promotional purposes is not permitted by law.
In the case of Anti and Hasrul, their protest was ignored by the photographer because he did not know that what he had done was wrong. This is still common because many people do not know that such action is prohibited by law.
For example, a photo studio usually displays various customer photos. If the customer does not want it, they can ask the studio to take down the photo because there is a law that regulates it.
The same law applies to cases of brands that use portraits of actors or celebrities; not to mention the fact that the portraits they use show the face of famous people. As celebrities, they work as icons or spokespersons for brands that they form an official partnership with.
Using their portrait without permission could cause material loss not only to the celebrities, but also to the brand and the people who work for them.
A celebrity has an image that is built with the aim of building public trust. Using portraits of celebrities without permission could also harm consumers because the quality of the products cannot be guaranteed. Of course, such action will also harm the celebrity's personal branding.
In addition, a person who carries out promotional activities can be held accountable under the Consumer Protection Law. The law regulates various advertising rules, one of which is related to the quality of the promoted goods.
The celebrity could be summoned for the advertisement of a product that they themself did not know about. This is because celebrities, influencers, musicians, actors, or those in professions that involve product promotion are categorised as advertising business players according to the law.
How to tell the difference?
When we see posts on social media, Instagram for example, that share pictures or artworks showing certain singers or actors, we can classify these actions as a form of appreciation to their idols. On the contrary, if the image is produced in large quantities and sold, this action has the potential to violate the law and harm the celebrity economically.
Another example is creating an account that is dedicated to share photos of certain girl or boy groups. This is not a detrimental action, but an act to show full support for the celebrity.
It is different if such action is carried out by a brand, which is basically a business entity that is established to make a profit. Using a celebrity's face without permission is detrimental to the celebrity, because the company didn’t spend a single penny that they should have paid for marketing purposes. Meanwhile, the celebrity who should have earned a certain amount of money for the exploitation of their popularity gets nothing.