Another decision in favor of protecting the rights to Audrey Hepburn’s image

The Court of Turin recently issued a decision that adheres to well-established case law under which the consent of a person whose image is commercially exploited shall always be obtained, unless this use pursues a specific and relevant public interest or public information needs. This consent requirement is even stronger when the specific use of the relevant image can impair and prejudice the dignity and the honor of the person portrayed.

On February 27, 2019, the Court of Turin fully recognized the claim for the infringement of Audrey Hepburn’s image rights brought by her heirs (the “Applicants”) against an Italian firm (the “Defendant”), which produces and markets T-shirts on which the famous British actress is represented with her middle finger raised, covered in tattoos or with big chewing-gum bubbles.

Specifically, the Applicants claimed that their rights were violated under Section 96 of Italian Law No. 633/1941 (the “Italian Copyright Law”) and Section 10 of the Italian Civil Code due to the fact that the Defendant commercially exploited Audrey Hepburn’s image without acquiring the prior necessary consent from the legitimate rightsholders.

As a consequence, the first argument pleaded by the Defendant was that under Section 97, paragraph 1, of the Italian Copyright Law no consent was required to reproduce Audrey Hepburn’s likeness due to her fame.

Moreover, the Defendant further argued that the use of Audrey Hepburn’s image on its T-shirts was not intended to cause any prejudice or to tarnish the image of the actress, but rather to celebrate female empowerment.

Thus, the Defendant’s use of Hepburn’s likeness was allegedly not intended as a slavish and unoriginal reproduction of the actress’s likeness, but rather as a “different and completely original work“: creativity was invoked to foster creativity and human progress, and as such “the same idea might be grounds for different works eligible for copyright protection.”

The Court nonetheless ruled in favor of the Applicants, on the basis of different reasons.

First of all, the Court clarified that Section 96 of the Italian Copyright Law and Section 10 of the Italian Civil Code clearly establish the general rule according to which any use of an image of a third party needs their (or that of the legitimate heirs) consent.

Secondly, the Court cited well-established case law of the Supreme Court of Cassation that strictly interprets potential derogations to the general rule on consent under Section 97 of the Italian Copyright Law. The Court recalled that the Italian Supreme Court had clarified on various occasions that this provision, which is a derogation from the general rule of image rights protection, should be interpreted strictly and therefore, “the unauthorized use of someone’s likeness is only lawful insofar as and to the extent that it fulfils public information needs, not also when it pursues other objectives (advertising, commercial, etc.).

Thirdly, the Court of Turin further clarified that, even where one of the exceptions provided under Section 97, paragraph 1, of the Italian Copyright Law applied, it is in any case strictly forbidden to use someone’s image in a way that can impair “the honor, reputation or even decorum of the person portrayed.

The Court also found that the particular way in which Audrey Hepburn was represented on the T-shirts clearly impaired her honor and reputation.

In conclusion, the Court dismissed all the Defendant’s arguments and found that Audrey Hepburn’s image rights had been violated, thereby ordering the Defendant to pay the Applicant EUR 45,000 in pecuniary damages, determined on the basis of the “price of consent”, that is the price of a hypothetical license fee.

Actually, this was not the first time that Audrey Hepburn’s image rights received strong protection against its use without any prior consent. Back in 2015, the Court of Milan ruled in favor of protecting Audrey Hepburn’s image rights against its unlawful use by another company.

In that case, the dispute arose from an advertising campaign published in a women’s weekly magazine and on that company’s website. The campaign included pictures of a model resembling Audrey Hepburn in a famous sequence of the film “Breakfast at Tiffany’s”.

Again, the dispute concerned the correct interpretation of Article 97 of the Italian Copyright Law.

In this case, the Court recognized the undue use not specifically of the portrait and features of the actress herself, but of some elements that, even if not directly related to her alone, in consideration of their distinctiveness and their evocative value, were likely to immediately remind the public of the actress, to whom these elements (clothing, badges, makeup, ornaments, hairstyle) are now inextricably linked.

Specifically, that same distinct hairstyle, the black dress, the long black gloves, the jewels and sunglasses that together characterized the image of the actress, as well as the pose of the model, led the Court to rule on the existence of an improper use of the image of Audrey Hepburn without the necessary consent.

These cases confirm the need to review carefully the ads including any reference, even indirect and by means of evocative elements, to famous people.

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