The relevant legal framework.
Under Italian Statute Law a person’s name and image pertain to an individual’s personal sphere, which prevents any unauthorized use. These publicity and image rights benefit from severe protection granted both, by the Civil Code as well as by the Intellectual Property Act. In addition, unauthorized use may easily result in a criminal offense (governed by the provisions of the Italian Penal Code).
Hence, the rule of law is that a person’s image may be used only on the interested individual’s consent.
Use without consent may occur (as an exception) only if set by law and on condition that such use does not result prejudicial to the dignity or reputation of the represented person. Specifically, the local Intellectual Property Act allows the unauthorized exhibition, reproduction or sale of an individual's image only if such use is justified by his/her notoriety and by a general interest, e.g. for purposes of information to the public (right to freedom of the press).
So, what about those pics or videos of all the VIPs we constantly see in the media?
While an individual’s ‘personality rights’ are not disposable (i.e. may not be transferred to others or cannot be object of contractual transactions, e.g. you cannot sell your name), persons well known to a broad audience frequently draw significant income from their fame (e.g. from appearing as testimonials in commercials or ads or from performing as influencers). Such economic aspects relating to the use of a person’s name or image obviously imply the involved individual’s consent, which is usually achieved through thoroughly worded contractual agreement (and against compensation).
These ‘economic aspects’ related to personality rights quite frequently end up before Courts, especially when a non-authorized use for advertising – or in a broader sense, commercial - purposes occurred, determining such use prejudice and damaging effects, as the represented person is deprived of the remuneration, he/she could have achieved by giving consent.
In addition, a significant number of lawsuits used to originate from reports of an ‘overly nosy’ Press, dwelling a little too deep into a VIP’s privacy sphere (however, nowadays the sophisticated technology of the ‘New Media’ makes it truly difficult to go after – and to catch – the intruding bad guys).
You have the represented individual’s consent, so feel that you are on the safe side?
Even once you have achieved consent for using an individual’s name or image, you may find yourself in legal trouble. Additional issues will easily surface, such as: what if the involved individual revokes consent previously given? When you have an individual’s consent, can you simply transfer it to third parties?
Local case-law has held that, while consent may result ‘by implication’, i.e. from unambiguous conduct or unequivocal indications, it must result clearly referable to ‘specified uses’. Otherwise there might be issues about whether consent achieved results enough and suitable to cover a certain use.
The local Highest Civil Court has also set - as a rule – that consent may be legitimately withdrawn in case of uses detrimental to the represented individual’s dignity or reputation. Furthermore, given the peculiar nature of a person’s ‘image right’, the Court has held that consent may be revoked also unconditional of any use with detrimental effects. However, if an unjustified withdrawal occurs before all uses previously agreed on have been accomplished, the party harmed by such practice is entitled to seek for damage compensation.
Case-law also clarifies that permission for image use for advertising purposes can be transferred to third parties. However, the represented person’s consent needs to be substantiated through documentary evidence. Hence, releases for using an individual’s image for commercial communication must be drafted carefully.
What about damage compensation, when you are caught in unauthorized use of a VIP’s image?
To conclude a few lines about the economic aspects related to the unauthorized use of a famous person’s image. A few weeks ago, the Highest Italian Civil Court has rendered a decision offering some interesting indications on how these specific claims for damage compensation should be handled. The case originated from the following factual background:
- a local ‘paparazzo’ had been chasing a famous actor, while he was vacationing in his private residence, by rather intrusive means (the photographer had been lying in wait on an elevated location for days, had taken advantage of gaps in the surrounding hedge, had gone to a point where he introduced himself into private premises of the actor’s villa and had made use of sophisticated technical equipment to take pictures),
- a series of photographs had been shot, showing the actor shirtless, in company of guests and with a showgirl (at the time the actor’s girlfriend),
- those pictures were then sold to a gossip magazine and were published on two weekly issues.
The actor sued the magazine, a First Instance Court felt that neither the plaintiff’s notoriety nor the freedom of press principle could justify such an intrusion into the actor’s private sphere. It found that in the specific case the necessary balance between freedom of press and an individual’s right to privacy – which the latter is entitled to with respect to facts and situations without direct relevance to his public role and notoriety - had been violated and therefore awarded Euro 80.000 in material damages and the additional sum of Euro 40.000 in damages for non-material harm.
On appeal, a Second Instance Court dismissed the claim for material damages arguing that the actor, having expressly denied consent for publication of photos relating to his private life and subsequently having prevented any possible economic use of the pictures, was not entitled to claiming such damages. As to the rest, the first instance decision was maintained.
The case ended up before the Highest Instance Civil Court, which took the opportunity to offer some general indications of the key points to consider when the Courts come to deal with tis kind of cases. In detail, the High Court:
- reminded that - according to its own case-law - the unauthorized publication of the image of a famous person causes prejudice, if such publication prevents the represented individual from offering on the market the use of such image,
- also recalled that such prejudicial effect is not excluded by the fact that a strict denial to anybody to use unauthorized shots had been expressed, as such denial: (a) could not be interpreted as an ‘abandonment’ of the individual’s image rights or as a sort of free pass for any possible use, (b) could simply be the result of an individual’s choice to not allow uses considered as harmful to his/her professional reputation,
- set that individual’s suffered prejudice had to be assessed not only in relation to the ‘commercial value’ of the unauthorized use, but also having regard to the harmed person’s professional reputation.
- held that unauthorized publication of a famous person’s image obliges the infringer to provide for compensation of material damages, where such damages had to be determined with respect to the economic prejudice suffered (and substantiated) by the harmed subject due to the illicit use of his image. If such prejudice cannot be proved in detail – i.e. in relation to specific elements – the plaintiff may seek for an amount equal to the fee he/she would likely have requested for giving consent.
The Court dismissed plaintiff’s further claim, directed to having the amount assigned for non-material harm reviewed as it felt that such claim – though smartly structured – was aimed at increasing the respective amount determined by the lower court, an attempt to have factual elements revisited (as such outside of the competence of the High Court).
The case was sent back to a Second Instance Court for the final determination of plaintiff’s material damages.