A few things marketers sometimes tend to forget about.
When conceiving and performing their promotional campaigns advertisers (and their agencies) frequently make use of pictures of famous people and underestimate the risks implied by such a practice. The fact that the represented individual has passed away decades ago does not mean that you can take advantage of the reputation of a famous movie star or musician without paying due attention to their image rights.
The local legal framework.
Under Italian Statute Law an individual's image may not be used without his/her consent. A person's publicity and image rights are specifically protected both, by the local Civil Code as well as by the Intellectual Property Act. It goes without saying that when unauthorized use results in a criminal offense, the provisions of the Italian Penal Code will also apply.
Exceptions (i.e. use without consent) are permitted only when specifically set by law and provided such use does not result prejudicial to the dignity or reputation of the represented person. The local Intellectual Property Act (Law no. 633 of April 22, 1941) prevents the unauthorized exhibition, reproduction or sale of an individual's image, safe the case where such use results justified by his/her notoriety and by a general interest (e.g. for purposes of information to the public).
Local Courts and unauthorized use: Some general principles set by case-law.
While an individual's image pertains to his/her – as such not disposable – 'personality rights,' its use easily involves economic aspects, which form object of contractual agreements, especially when the represented individual is famous or well known to a broad audience. Therefore, to no one's surprise, local Courts come to deal - quite frequently - with unauthorized image use for advertising or promotional purposes. In these cases, the Courts mostly take the view that such use is illegal and results in prejudice and damaging effects, as the represented person gets deprived of the remuneration obtainable by giving consent.
When (un)authorized image use comes into dispute, additional issues may easily become an argument of discussion, i.e. whether consent, once duly obtained: (a) can be revoked, and (b) is automatically transferrable to third parties.
First, it must be considered that consent – even though capable of being achieved by 'implication' – needs to cover 'specified uses', otherwise resulting exposed to the risk of being considered as insufficient.
While – in principle - consent may be legitimately withdrawn in case of uses detrimental to the represented individual's dignity or reputation, according to the local Highest Civil Court (i.e. the "Corte di Cassazione") it can also be revoked at any time and even without just cause. Where such (unjustified) withdrawal occurs before all uses covered by the release previously obtained are performed, the party harmed by such improper consent withdrawal is entitled to seek for damage compensation [N.B. In the local legal system damages need to be substantiated, both as to their immediate causative connection to the opponent's conduct as well as to their actual amount].
Permission for an image’s use for advertising purposes can be transferred to third parties. However, the represented person's consent needs to be substantiated through documentary evidence. Releases for using an individual's image for commercial communication have therefore to be drafted carefully.
How about using a dead person’s image for marketing purposes?
One could think that using the image of an individual passed away a long time ago puts the user on the safe side. Well, that could easily result in a wrong assumption and in hefty economic consequences. A recent case dealt with by a Court in Northern Italy in April 2019 involved Hollywood Superstar Audrey Hepburn (whoever is over sixty will remember her performances in “Roman Holiday” and in “Breakfast at Tiffany’s”), who got married to an Italian and therefore lived for many years in Rome. Her two sons tend to be very attentive to protect the reputation of their deceased mother as well as the respective image rights. When a local company manufacturing T-shirts used Ms. Hepburn’s image – in an attempt to make fun and to be ‘original’ - on T-shirts presenting her while blowing a big chewing gum bubble or while raising a heavily tattooed arm and giving the finger, the heirs were not amused and took issue with such use as they felt it was offensive and detrimental to their mother’s reputation. Hence, a claim before a First Instance Court in Turin seeking for both, damage compensation as well as for a cease and desist order preventing any further use of the questioned T-shirts.
The defendant came up with several procedural issues (arguing its lack of standing with respect to plaintiff’s claims) and – on the merits - tried to convince the Court that in the specific case the ‘notoriety exemption’ (overcoming the consent requirement for the use of a famous person’s image) should apply, as pictures of Ms. Hepburn could easily be found in many public places, such as pubs, bars, movie theatres, etc. In addition, the defendant also argued that no ‘offensive’ use of M. Hepburn’s image had occurred.
The Court dismissed such arguments and found that the defendant could not rely on the notoriety exemption as in the specific case the use of Ms. Hepburn’s image was not aimed at offering relevant information of public interest but clearly pursued a commercial intent. Hence, the unauthorized use justified the plaintiffs’ claims for damage compensation.
Accordingly, the Court awarded the defendant with the following rulings:
- Euro 45.000 for lost profits (i.e. the fee the plaintiffs would have been able to obtain for giving consent to the use of their mother’s image),
- Euro 11.250 for reputational damage (i.e. for image dilution),
- Euro 5.000 for compensation of non-material damages (i.e. for the improper use of Ms. Hepburn’s image, considered – in the specific case - as of bad taste and offensive)
- Euro 13.610 in legal fees,
- an order to restrain from any further use of Ms. Hepburn’s image.
A hefty price for nine T-shirts!
When using pictures of a famous person, never forget about the photographer!
Another aspect is frequently missed when marketers or celebrities make use of images in campaigns or in posts on social media: the rights of the photographer, author of the pictures used.
In recent years, several actors/actresses, fashion models, socialites, sports stars and musicians have gotten involved in legal trouble and in lawsuits because they had not properly considered whether – based on the contract in force with the photographer - they had the right to use a certain picture outside the scope originally agreed on (or given the source of the photo).
They had to acknowledge that a photo of their own persona – especially when found on some website online - did not automatically entitle them to any use they would think of and to ignore the position of the author of the picture. In fact, under existing copyright provisions uses outside of the those laid down in contractual agreements or without proper consent from the author, require a specific, additional license (and separate compensation) to result legitimate.
Ignoring such detail, may easily lead to expensive consequences.