BACKGROUND OF THE CASE
In 2005, Ms. M.L. (“Claimant”) sued BMG Ricordi S.p.A. (now Sony Music Entertainment Italy S.p.A.) (“Defendant”) in the Court of Benevento, after discovering that she had appeared in a music video—shot for the Defendant by G&G Production S.r.l. (“G&G”)—standing hand-in-hand with her lover. The dispute centered around the music video for the song “Oj nenna ne,” recorded by Gigi d’Alessio, an Italian singer and a major celebrity in Naples at the time. The music video was later distributed via DVD as a supplement included in one of Italy’s top listing publications, which, according to the Court was “widely distributed” in the Claimant’s neighborhood.
The Claimant sought to have the Court of Benevento find that the Defendant had violated her right to privacy and unlawfully used her image in the music video, as it did not request her prior consent according to Article 97 of Italian Legislative Decree of April 22, 1941, no. 633 (“Italian Copyright Law”). Accordingly, Claimant also requested that the Court order payment of pecuniary damages, as she claimed that the Defendant had violated her right to privacy and commercially exploited her image without her consent, thereby depriving her of what is known as the “price of consent”—in other words, the amount she should have been paid for consenting to have her image used in the music video. The Defendant sought to have the Court make G&G a party to the proceedings, as G&G allegedly had undertaken to hold the Defendant harmless against claims related to the use of third parties’ images in its videos.
However, the Court of Benevento rejected all the Claimant’s arguments and held that Article 97 of the Italian Copyright Law had not been violated by the Defendant. First, according to the Court, the Claimant’s tacit consent could be assumed as she could not have been unaware of the fact that a video was being shot under the circumstances, given the presence of camera crew and a film set. Second, the Claimant’s consent was not required, as the recorded event took place in a public space. On these grounds, the Court dismissed the case.
The Claimant then appealed the decision of the Court of Benevento before the Court of Appeal of Naples (“Court of Appeal”), which sided with her and ordered the Defendant to pay damages—ultimately to be borne by G&G.
In its decision, the Court of Appeal concluded that, under Article 10 of the Italian Civil Code and Article 97 of the Italian Copyright Law, jointly, the unauthorized reproduction of the image of a depicted person is always unlawful when it takes place without the person’s consent, and its use is not justified by specific purposes (e.g., the celebrity enjoyed or the office held by the portrayed person; judicial and/or police needs; cultural, scientific, or educational purposes) or circumstances (such as the fact that use of the image of the portrayed person is linked to facts, events, or ceremonies that are of public interest or held in public).The Court of Appeal concluded that none of these requirements were met in the case at stake.
In overturning the decision of the Court of Benevento, the Court of Appeal also ruled out that the Claimant’s implicit consent could be assumed because she looked at the camera for a few seconds or because she allegedly could not have been unaware of the film set and the cameras. On these grounds, the Court of Appeal liquidated both pecuniary and non-pecuniary damages on an equitable basis to be paid to the Claimant—as specified below.
The Defendant appealed this decision before the Italian Supreme Court (“Supreme Court”) based on five sets of grounds for appeal.
THE SUPREME COURT DECISION
The Supreme Court rejected all of the Defendant’s claims, but two of those dismissals are worthy of particular attention.
First, the Supreme Court rejected the Defendant’s argument that the Court of Appeal unduly compensated the Claimant for non-pecuniary damages, whereas she did not provide any proof substantiating the damages she allegedly suffered. The Supreme Court upheld the conclusions of the Court of Appeal, which stated that the mere disclosure of Claimant’s relationship to the public was already sufficient to assume she had suffered psychological pain and order the consequent non-pecuniary damages—especially considering the widespread distribution of the video in the Claimant’s neighborhood, and the “social environment” involved. On this point, in response to another argument from the Respondent in the appeal, the Supreme Court reaffirmed that the decision of the Court of Appeal to use assumptions to set payment of non-pecuniary damages cannot be contested, as long as the judges provide the circumstantial evidence underlying the assumptions.
Finally, the Court also rejected the Defendant’s argument that the Court Appeal erroneously awarded pecuniary damages to the Claimant. The Defendant argued that the Claimant was not entitled to pecuniary damages as—since she was not famous—her image did not have any commercial value, and thus pecuniary damages should not have been ordered, as the basic requirement of an economic loss for the Claimant had not been met. However, the Supreme Court sided with the Court of Appeal, holding that the judges correctly awarded pecuniary damages to the Claimant, even though she did not demonstrate that she had suffered economic loss of profit deriving from the unauthorized commercial exploitation of her image. The Supreme Court reaffirmed that, in these circumstances (i.e., when the depicted person is not famous), it is sufficient for the judges to liquidate pecuniary damages on an equitable basis using the price that Claimant would have sought for the use of her image in the music clip as a criterion—a practice consistently applied by Italian courts.
This case is especially interesting, as it is one of the few cases where the Supreme Court has considered the unauthorized use of a person’s image in an audiovisual work.
Notably, in its decision, the Supreme Court clarified the criteria regulating compensation of damages for the unauthorized use of images of non-famous people. First, the reasoning of the Supreme Court confirms that pecuniary damages may be awarded to non-famous people on an equitable basis, even if they do not prove economic loss from unauthorized use.
Second, the Supreme Court made clear that non-pecuniary damages can be liquidated on an equitable basis for the unauthorized use of people’s images, and judges can use legal presumptions—based on the circumstances of the case—to determine that the person depicted has suffered them.
Thus, when evaluating whether to use images of non-famous people without their authorization, production companies should always consider the risk of having to pay damages to a depicted person, even if their image does not have any commercial value and is used in a short clip (10 seconds in the case at hand).