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When it comes to protecting privacy, times are tough. In the age of the Internet and Social Networks, images and portraits flow at lightning speed and the boundary between what is lawful and what is unlawful is becoming increasingly blurred. In this article, we will discuss the Image Rights, with particular emphasis on the following issues:
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According to Art. 10 of the Italian Civil Code and Art. 96(1) of the Copyright Law, it is forbidden for third parties to:
the portrait of another person – by which is meant any representation of his or her likeness – without the consent, even implicit, of the concerned person.
We can therefore define the Image Right as the right of the subject to enjoy, control, use and grant his own portrait in a full and exclusive manner. This right is one of the inviolable human rights recognised and guaranteed by Article 2 of the Italian Constitution and is one of the so-called Personality Rights. These rights are characterised by their necessity, imprescriptibility, absoluteness, non-patrimoniality and non-availability (“…necessarietà, imprescrittibilità, assolutezza, non patrimonialità e indisponibilità…” – TORRENTE, A., SCHLESINGER, P., Manuale di diritto privato, XXIV ed. edited by F. Anelli and C. Granelli, Giuffrè Editore, pp. 124-125).
To date, there is no doubt that the salient features of a person’s physiognomy fall within the scope of the image right insofar as they are distinctive and individualising. In short, the person portrayed must be “recognisable”. For this reason, jurisprudence is significantly widening the scope of applicability of image protection, to the point of including the so-called caricature, the figure of the impersonator, as well as the so-called stage mask (TORRENTE, A., SCHLESINGER, P., op. cit., pp. 141-142; DELL’ARTE, S., Diritto dell’immagine nella Comunicazione d’Impresa e nell’informazione, Experta Edizioni, 2005).
The consent of the person concerned (i.e. the so-called release) is an indispensable prerequisite for the exhibition or publication of another person’s portrait. Art. 96(1) of the Italian Copyright Law is quite clear in stating that “The portrait of a person may not be exhibited, reproduced or marketed without that person’s consent, apart from the provisions of the following article”.
It is however common ground that the owner of the right may allow third parties to use his/her image not only free of charge but also against payment (in the latter case, in the event of withdrawal of consent, the right of the other party to compensation for damages is not affected). Contracts concerning the right to use another person’s image must in any case be in writing to prove their existence against third parties, i.e. ad probationem (under Art. 110 of the Italian Copyright Act, “The transfer of rights of use must be proven in writing”).
Consent to the publication of one’s own image qualifies as a unilateral transaction. This is stated by the Italian Supreme Court: the legal transaction at issue does not concern the image right (which, as a matter of fact, is highly personal and inalienable) but only the use of that right. Consequently, although it may occasionally be included in a contract, the consent remains distinct and independent from the agreement that contains it and is always revocable, whatever the term indicated and regardless of the stipulated agreement (in this regard, see Italian Supreme Court of Cassation, 29 January 2016, no. 1748; Italian Supreme Court of Cassation, 6 May 2010, no. 10957).
The consent of the person concerned is deemed to be valid exclusively for the benefit of the person to whom it has been given, in accordance with the purposes, methods and times indicated by the consenting party. Any use that breaks the agreed limits would certainly be harmful.
Consent is not always necessary for the exploitation of images. Article 97(1) of the Italian Copyright Law governs the cases in which the distribution of another person’s image is permitted even without the consent of the person concerned, if such publication is justified:
In such cases, the distribution of another person’s image without the consent of the person concerned must be justified by public information requirements. For the Italian Supreme Court, the sacrifice of the privacy of a person known to the public can be justified only when the breach in other people’s personal sphere is founded on a socially relevant interest. With this in mind, images of well-known persons may certainly not be disclosed for the purpose of economic exploitation (as an example, the use of the image of a well-known footballer for the purpose of advertising a commercial product is prohibited without his consent, see Italian Civil Court of Cassation, 19 July 2018, no. 19311; TORRENTE, A., SCHLESINGER, P., op. cit., p. 142.)
The portrait may not be exhibited or marketed when such activities are detrimental to the honour, reputation or dignity of the person portrayed (art. 97, par. 2, l. aut.). This prohibition, however, yields in the face of the legitimate use of the right to report news (art. 21 of the Italian Constitution), provided that the news is essential and pursues the aim of satisfying a public interest, with a view to the truth, continence and pertinence of the information provided.
We have considered the circumstances in which the use of someone else’s image is allowed. We will now analyse the legal actions and compensation that can be obtained by those who have suffered damaging behaviour. The violation or abuse of the image right obliges the offender to:
The injured party may also ask the judge to issue an urgent precautionary measure (pursuant to art. 700 of the Italian Code of Civil Procedure) to prevent the continuation or repetition of the offence.
What to do in case one’s image has been distributed (also by unknown persons) on the Web? In such case, you may request the immediate removal of the images directly to the service providers, through dedicated procedures or, in any case, through an initial warning letter. The deletion of the incriminated images must take place promptly following the notification, otherwise the service provider will be liable to pay compensation for the damage.
What happens on the death of the right’s holder? The Italian Law states that the rights of exploitation are transferred to the heirs.
In order to allow the use of the image of the deceased “the consent of the spouse or the children or, in their absence, the parents; in the absence of the spouse, the children and the parents, of the brothers and sisters, and in their absence, of the ascendants and descendants up to the fourth degree” is required (“occorre il consenso del coniuge o dei figli, o, in loro mancanza, dei genitori; mancando il coniuge, i figli e i genitori, dei fratelli e delle sorelle, e, in loro mancanza, degli ascendenti e dei discendenti fino al quarto grado” – see art. 93, para. 2 and 96, para. 2, the copyright law).
The holder of the portrait may, however, by means of a will, determine the fate of his image after his death (see Art. 93(4) of the Copyright Law).
The heirs’ right to immediate cessation of the damaging conduct and compensation for damages in the event of infringement or abuse of the deceased’s image remains unaffected.