1. According to 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
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.
Additionally, 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).
2. While an individual's image pertains to his/her –
not disposable as such – '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 came to deal, quite frequently,
with non-authorized image use for advertising purposes, mostly
stating that such use results in prejudice and damaging effects, as
the represented person gets deprived of the remuneration obtainable
by giving consent.
3. 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.
a. First of all, it has to be considered that consent –
even though capable of being achieved by 'implication'
– needs to cover 'specified uses,' otherwise being
exposed to the risk of resulting insufficient.
b. While, as a general rule, 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withdrawn in case of uses detrimental to the represented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 ("Corte di Cassazione", judgment no.
1748 of January 29, 2016) 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, the
party harmed by such practice is entitled to seek for damage
compensation in favor of the harmed party [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].
c. Permission for image 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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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