Article 96 of Italian Copyright Law of Italy provides that
“the portrait of a person cannot be showed, reproduced or commercialized without its consent”
unless the image’s reproduction is
“justified by the reputation or public office carried on, from the need of justice or police, from scientific, educational or cultural purposes, when reproduction is linked to facts, events, public interest ceremonies or held in public” (Article 97, Italian Law 633/1941).
In any case, the picture cannot be shown or commercialized
“when its display or trade causes prejudicial to the honor, reputation or dignity of depicted person” (article 97, second paragraph).
Also article 10 of the Italian Civil Code deals with the image rights, providing that:
“If the image of a person or its parents, spouse or children has been exposed or published besides cases where the exposure or publication is permitted by law, or by injury to the dignity or reputation of the person or of said relatives, at the request of the interested party the Judicial Authority may order the end of the abuse and compensatory damages”.
Subject of the right is the physical image of the person, as the social image is instead subject of the different social right to personal identity. This latter has as its object the protection of the individual’s personality and defends the interest in being represented in its true identity.
The consent to publication
According to the most recent case-law, the consent required by the law must be declared, though not necessarily given in writing. Consent may be limited and restricted to some uses. For example, it is possible to give consent for your images to be published solely and exclusively in the context of an advertising campaign against smoking and to deny the consent for any other use.
The list of free use referred to Article 97 must be regarded as exhaustive and should be interpreted narrowly.
Compensation for damages
With regard to compensation for damages in cases of breach of law protecting the image right, the method generally used is so-called “price of consent”, namely how much it is likely to believe that the person would ask to give its consent to the publication of the image. The amount is determined on an equitable basis.
In this regard the Supreme Court (judgment of May 16, 2008 n. 12433) stated that:
“If it is not possible to demonstrate specific items of pecuniary damages, the injured party may assert the right to payment of an amount corresponding to the remuneration that would have presumably required to give his consent to the publication, determining such amount equitably, having regard to the economic benefit gained by the author of the unlawful publication and any further circumstance consistent with the scope of the settlement, taking into account, in particular, of the criteria laid down by Article 128, second paragraph, Italian Law of Copyright”.