MEXICO Law and Practice Contributed by: Gabriela Pellón, Mario Eduardo Valencia, Irma Ross, Ana Elena Domínguez and Fernando Rodríguez, Galicia Abogados, S.C.
ing the rights of reproduction, distribution and public communication. 8.2 Legal Protection for Different Types of Photographs Different types of photographs may be protected under distinct but related regimes. Artistic photo - graphs are fully protected under the LFDA as copy - righted works. In addition, even photographs that may not reach the originality threshold required for full copyright protection can receive protection as related rights ( derechos conexos ), which grant the photogra - pher exclusive economic rights for a limited term. Fur - thermore, depending on their use, photographs may also implicate other legal frameworks. For example, portrait photographs may engage image rights and privacy rules under civil law, photographs incorporat - ing protected trade marks may raise issues under the LFPPI, and photographs depicting protected artworks or monuments may trigger additional rules under cul - tural heritage legislation. Registration before INDAU - TOR is not mandatory but provides evidentiary value in case of dispute. 9. Artworks and New Technologies 9.1 NFTs Non-fungible tokens (NFTs) are not specifically reg - ulated under Mexican law, as there is no dedicated statutory framework governing them as a distinct legal category. However, this does not mean they exist out - side the legal system. Depending on their structure and the rights they purport to convey, NFTs may fall within existing legal regimes. For example, if an NFT is linked to a protected artwork, the LFDA applies, and the transfer of the NFT does not, by itself, transfer the underlying copyright unless there is an express written assignment or licence of patrimonial rights that com - plies with the formal requirements of the law. Like - wise, civil and property law principles may govern the token as a digital asset, but ownership of the NFT is legally distinct from ownership of the underlying asset it references. If the NFT grants economic or participa - tion rights resembling securities, financial regulation may become relevant, and where NFTs are marketed to consumers, consumer protection rules may also apply. Therefore, NFTs are indirectly regulated through
the application of existing intellectual property, civil, financial and consumer protection laws, depending on their specific characteristics. 9.2 Counterfeit NFTs Inauthentic or counterfeit NFTs can circulate, reference artworks without authorisation, misrepresent author - ship or falsely imply endorsement. Under Mexican law, such conduct may give rise to liability under the LFDA if the NFT involves unauthorised reproduction, distri - bution or communication to the public of a protected work. Additionally, if distinctive signs (such as trade marks or trade names) are used without authorisa - tion in connection with the NFT, the LFPPI may apply. Consumer protection and unfair competition rules could also be triggered if the NFT is marketed in a misleading manner. Therefore, while the technology allows counterfeit NFTs to circulate, their minting and commercialisation may constitute intellectual property infringement or other unlawful conduct under existing Mexican law. 10. Gifts, Donations, Trusts and Inheritance 10.1 Planning for Generational Transfer of Artworks An artwork or art collection is generally transferred across generations via wills, donations or contribu - tions to Mexican trusts ( fideicomisos ) for the benefit of one or more persons with the purpose of ensuring proper administration, conservation, exhibition and eventual disposition of the collection. Specific artworks can be designated as legacies in a will or directly transferred during the collector’s life - time, either as a direct donation or as a contribution to a Mexican trust with certain rules. Inheritances and donations (the latter only when are between spouses and ascendants and descendants in a direct line) are exempt from Mexican income tax and bound to comply with certain formal require - ments.
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