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Avvocato Arlo Canella
Italian Supreme Court Judgment No. 36106/2023 is exceptionally striking as it deals with the freedom to use the image of well-known personalities during paid initiatives, such as private exhibitions and shows with a cultural purpose.
Italian Supreme Court Judgement No. 36106/2023 focuses on the legitimacy of the use of the image of a well-known football player in the context of a paid exhibition, yet with a celebratory and cultural purpose. The judgment set an outstanding precedent on how cultural and non-commercial purposes can justify the public use of the image of a well-known person without his or her consent under Article 97 of the Italian Copyright Law.
The case addressed by the judgment thus concerns the dispute between a famous footballer and the limited liability company, which manages the stadium hosting an exhibition-museum dedicated to Milan’s football champions, including memorabilia and images of the footballer himself. The latter contested the unauthorised use of his image, claiming that such use was abusive and for profit, given that access to the exhibition was upon payment (seven euros, with discounts for children under 16 and the elderly).
The Court of Milan initially agreed with the player, sentencing the company to pay damages for abusive use of the image. However, the Court of Appeal of Milan overturned this decision, judging the use of the image as non-commercial and therefore lawful, since it was included in a museum context with celebratory and cultural purposes, with no preeminent profit motive (admission seven euro, with discounts for children under 16 and for the elderly).
The football player then appealed the decision of the Court of Appeal to the Court of Cassation, arguing that the definition of “museum” applied by the Court of Appeal was neither appropriate nor in accordance with the law, and that the price of the ticket implied a lucrative intent not allowed by law.
The Court of Cassation rejected the appeal, upholding the Court of Appeal’s interpretation of the non-commercial nature of the exhibition, emphasising that the use of the image fell within the cultural purposes provided for in Article 97 of the Italian Copyright Law, and therefore did not require the consent of the person concerned. However, the decision emphasised the importance of considering the purpose of the exhibition rather than the mere “museum” label, and concluded that there was no specific profit motive in running the exhibition, based on an overall assessment of the circumstances of the case. Now, let’s examine these circumstances in detail.
Gli articoli 96 e 97 della legge italiana sul diritto d’autore sono inseriti all’interno della Legge n. 633 del 22 aprile 1941, che regola i diritti relativi alla proprietà intellettuale e al diritto d’autore. Questa legge è essenziale per la protezione delle opere dell’ingegno di carattere creativo, sia letterario, musicale, artistico che scientifico, e comprende anche la protezione dell‘immagine delle persone (c.d. disciplina del ritratto).
Articles 96 and 97 of the Italian Copyright Law are included in Law No. 633 of 22 April 1941, which governs rights relating to intellectual property and copyright. This law is essential for the protection of intellectual works of a creative nature, whether literary, musical, artistic or scientific, and also includes the protection of people’s images (so-called portrait discipline).
Article 96 provides a general rule of protection, while Article 97 modulates this protection by introducing a number of exceptions that acknowledge the importance of free expression and the public interest in specific circumstances.
Article 97 provides that: “The consent of the person portrayed shall not be required when the reproduction of the image is justified by the notoriety or public office covered, by the necessity of justice or the police, by scientific, didactic or cultural purposes, or when the reproduction is connected with facts, events, ceremonies of public interest or held in public. The portrait may not, however, be exhibited or placed on the market, when the exhibition or placing on the market would be detrimental to the honour, reputation or even decorum of the person portrayed.”
The ratio legis of Article 97 is to balance the protection of people’s privacy and image with the need for public information and legitimate use in cultural, scientific and educational contexts. This article acts as an exception to the general rule imposed by Article 96, allowing the use of someone else’s image without explicit consent, but only under specific conditions (which, however, exclude commercial and advertising purposes).
In the case at hand, the Italian Supreme Court (No. 36106/2023) confirmed the interpretation of the Court of Appeal, which had pointed out that the display of the football player’s image inside the stadium did not pursue a profit-making purpose, but was rather aimed at “reviving for the fans the glory of past champions”.
In the view of the judges, such use fully falls within the celebratory and cultural purposes permitted by law, particularly those outlined in Article 97 of Law No. 633 of 1941 on copyright.
The Court agreed with the Court of Appeal, finding that the ticket price, set at Euro 7, was intended to cover the costs of running the exhibition and did not represent a source of profit. This detail corroborates the non-commercial nature of the initiative, emphasising that the primary objective was educational and public interest rather than financial gain.
The Italian Supreme Court made it clear that the application of Article 97 does not depend on the formal classification of the exhibition space as a “museum”. What matters is that the exhibition serves “scientific, educational or cultural” purposes, and in this context, the term “museum” was used in a broad sense to indicate the educational and cultural character of the exhibition, not necessarily linked to a strict legislative definition.
Furthermore, the Court considered that excluding the footballer from the exhibition could have damaged his public image, and not the other way around. As his historical figure was of major public interest, spectators would have been more surprised by his absence than by his foreseeable inclusion. Therefore, the inclusion of the footballer’s image contributed positively not only to his reputation but also to the cultural enrichment of the public.
The final decision to reject the footballer’s appeal is based on the finding that the exhibition properly falls within the exemptions under copyright law. The Court’s emphasis is not on the technical classification of the exhibition as a museum, but on its intrinsic substance and purpose, which are educational and cultural in nature.
The recent Italian Supreme Court ruling (no. 36106/2023) established new parameters for the use of images of well-known personalities, standing out for its flexibility compared to several judicial precedents.
In 2009, the Court of Bari condemned a political party to pay compensation of 175,000 euro to Liliana De Curtis, Totò’s daughter. During an electoral campaign, the party had used Totò’s image in posters with the slogan “E io pago! (And I pay!)”, referring to a recent judicial affair that had affected its political opponent. The Court had held that the use of Totò’s image in this context was an abuse, not justified by any of the exemptions provided for in Article 97 of Law No. 633/1941, as the use had clear political and advertising purposes, and did not fall within the scope of cultural, educational or public interest purposes.
In 2019, the Court of Turin had ruled that the company [omissis] could not use Audrey Hepburn’s image on T-shirts without the heirs’ consent. The T-shirts, which depicted the actress in “inappropriate” poses, had a clear commercial intent, infringing the image rights regulated by Article 97. The judgment had emphasised that the use of the image of a well-known person without consent is legitimate only if it is related to purposes of public interest or for educational, cultural or scientific purposes, neither of which were met in that case.
This recent jurisprudential orientation offers greater flexibility for those wishing to organise exhibitions or shows celebrating well-known persons. For instance, an ONLUS wishing to keep alive the memory of a deceased person through an exhibition could legitimately do so, interpreting the event as a cultural and educational initiative, falling within the exemptions provided for by law.
The judgment provides an important precedent for legal practitioners, emphasising the importance of carefully assessing the purpose of the use of images, which must clearly be non-profit and oriented towards the common good.
Well-known personalities, on the other hand, will have to be more careful, as the scope for using their images in cultural and non-profit contexts apparently becomes wider. Any unauthorised use of their images for commercial purposes remains prohibited, but they must also consider that cultural and non-profit uses may not require consent.
Avvocato Arlo Canella
