IMAGE RIGHTS AND ITALIAN LAW
The use in advertising of a photograph of a person is lawful only if authorised by the person depicted, who maintains the right to withdraw the authorisation.

Marina Venturi brought an action before the District Court of Bologna against the Italian coffee maker Segafredo Zanetti S.p.A. (Segafredo Zanetti in the following), claiming that the company had used photographs depicting her in its advertisements, without her consent.

The District Court of Bologna held in essence that Segafredo Zanetti’s use of the images was lawful, since the photographs fell within the scope of an agreement concluded in 2000 between Mrs. Venturi and an Austrian marketing agency, and the agreement authorised the agency to license the photos to third parties.

After an unsuccessful second instance appeal, Mrs. Venturi appealed to Italian Supreme Court, claiming that the first instance decision failed to take into account that in 2007 she had revoked her consent to the circulation of her image, withdrawn from the contract with the Austrian marketing agency and cautioned both the agency and Segafredo Zanetti against using the images at issue in any way.

The plaintiff also claimed that Segafredo Zanetti had never produced evidence of its purchase of the rights to the images from the agency.

The Italian Supreme Court issued its decision No. 1748/2016 on 29 January 2016, in which it upheld most of the appellant’s claims and annulled the first instance ruling, ordering the District Court of Bologna to issue a new judgement.

The decision pointed out first of all that according to the provisions of the Italian Civil Code and to Law No. 633/1941 on copyright, the reproduction of images without the depicted person’s consent is lawful only if and inasmuch as it answers a need of public information, and is therefore not permitted for advertising.

As also recognised by the European Court of Human Rights, image rights are inalienable, and according to the Supreme Court, they therefore cannot be the object of a contract or negotiation: the object of a contract can be merely the exercise of image rights. Consequently, authorisation given for the use of an image can be revoked at any time.

On this ground, the Supreme Court held that the plaintiff’s revocation of the agreement in which she had authorised use of her image had caused that agreement lose all legal effect. The decision also points out that according to Italian copyright law, the transfer of the right to use a person’s image must be proved in writing. Segafredo Zanetti had not produced any evidence of its purported acquisition from the marketing agency of the right to use the photographs at issue.

Lastly, the Supreme Court confirmed the right of the plaintiff to the payment of moral and material damages, the latter amounting to the sum the plaintiff would presumably have required for consenting to publication of the photographs.

26 February 2016