Audrey Hepburn: the unlawful reproduction of the image of a well-known person

A recent decision of the Court of Turin (no. 940/2019), finding that the image rights of the famous Hollywood diva Audrey Hepburn had been unlawfully exploited, marked a new victory for her heirs (in favour of whom the Court of Milan had already ruled with its decision no. 766/2015).

In the case at issue, the actress’ heirs had claimed before the Court of Turin the unauthorised use of Hepburn’s image on t-shirts produced and marketed (also online) by the defendant company. The plaintiffs had therefore sought monetary and moral damages suffered as a consequence of the violation of the relevant image rights.

In particular, the plaintiffs claimed the infringement of Article 96 of Italian Copyright Act, under which “a person’s portrait cannot be exhibited, reproduced or marketed without their consent” (or, after death, of their heirs as per Article 93 of the Copyright Act), and of Articles 10 of the Italian Civil Code and 97(2) of the Copyright Act, which prohibits the use of a person’s image when this could damage their dignity or reputation or that of their heirs. Among the items of clothing produced and marketed by the defendant, in fact, there were not only t-shirts bearing the image of the famous icon, but also reworkings that portrayed her covered with tattoos or while showing the middle finger.

In response to these claims, the defendant company argued that its use of the actress’ image was compliant with the provisions of Article 97(1) of the Copyright Act, according to which the consent of the portrayed person is not necessary if they are known to the public. Furtherly, the defendant also argued that the reproductions of Audrey Hepburn’s image on the clothing constituted a creative reinterpretation of the character, a symbol of women’s emancipation during the 1970s, giving life to an original work that promoted the actress in a feminist light.

However, recalling a consolidated case-law of the Italian Court of Cassation, the Court of Turin underlined that the cases in which a person’s likeness can be reproduced without their consent must be strictly limited to instances of exploitation aimed at providing the community with information on facts of some social utility. In other words, pursuant to the provisions of Articles 10 of the Civil Code and 96 and 97 of the Copyright Act, when the exploitation of a person’s likeness cannot be justified in light of a public interest in information, but, as in the present case, takes place for advertising or commercial purposes, such exploitation is unlawful in the absence of consent. In any case, the Judge concluded that the defendant had reworked the image of the Hollywood diva in a manner that damaged the reputation and dignity of her successors, causing the loss of the commercial value of the image (so-called dilution damage).

Having found the aforementioned conducts to be unlawful, the Court of Turin ordered the defendant to pay the plaintiffs EUR 56,000 as economic damages, determined on the basis of the ‘price of consent’ (i.e. the price that the parties would have agreed if they had entered into an agreement for the exploitation of the image rights) and EUR 5,000 in moral damages.