When we talk about the violation of the right of image we generally refer to photographed subjects. Actually, the jurisprudence wanted to clarify how in the violation of the right of image there can also be purely evocative elements, which can be traced back to a person, in the case under examination to a famous person.
The protection of the right of image
Article 10 of the Italian Civil Code protects the right of image and provides:
“if the image of a person or of its parents, spouse or children has been exposed or published, except in cases where exposure or publication is permitted by law, or with injury to dignity or reputation of the person or those relatives, the Court, upon request of the interested person, may order that the abuse cease, leaving untouched compensation for damage”.
The Court of Milan, in its judgment of 21 January 2015, enunciates a rather wide interpretation of the protection of the right of image, coming to recognize the violation even in case of unauthorized use of a number of elements which, for their evocative value, were considered able to recall in the public the image of the person (a famous British actress), although no direct use had been made of the actress in question.
The Audrey Hepburn case in advertising as a violation of the right of image
In this case, the heirs of the actress Audrey Hepburn sued a company
“for having used in commerce, in the absence of their consent, the image of Ms. Hepburn for their advertising campaign”.
The judges of the Court of Milan held that, although in the contested advertising campaign was depicted a model, there were a number of factors able to call in the perception of the public the image of the famous British actress: among them clothing, hairstyle, jewelry, sunglasses and a particular pose”. The same judges recognize that:
“ in the present case the plaintiffs did not complain about the use of a portrait – in the sense of a specific picture of the actress- but the photographic reconstruction of a context and a character – performed by a model – incorporating features and setting appropriate to draw in the viewer’s mind the image of the actress Audrey Hepburn”.
The Court of Milan recognized the violation of the right of image stating that
“There is an opinion, which has long been established in the case law, that the protection of the image of a natural person can be extended to cover also items not directly related to the person, such as clothing, ornaments and other elements which for their peculiarities recall in the perception of a viewer a character to whom such elements are inextricably linked”.
Furthermore, the judges states that:
“In these cases the clear evocative intent is elusive of the need to acquire the permission of the use of his/her image and elusive of the remuneration generally connected to a modality of exploitation”.
In light of the above, the Court of Milano recognized the violation of the right of image and the obligation to pay damages to the heirs of the actress who acted in Court.
The compensation was recognized in proportion to the use of the advertising campaign (in this case limited to a single advertising insertion of a magazine and the appearance of the image on the website of the defendant).