The limitations to the use of images of famous people: the “Rivera” case
The Italian Supreme Court outlined the limitations of the application of Article 97 of Law No. 633 of 1941 (hereinafter LDA), a rule that constitutes an exception to the general rule under Article 96 LDA, according to which the image of a person may not be exhibited, reproduced or put on the market without his or her consent. Article 97 of the LDA allows for an exception to the requirement of consent when the reproduction of the image is justified for several reasons, including the notoriety of the person. Through an organic analysis of the use of the image, with particular regard to Article 10 of the Italian Civil Code and the aforementioned articles, it can be inferred that the disclosure of a subject's image, in the absence of the subject's consent, is permitted only when the information needs of the public come into play.
The case in question arises following the establishment of a judgment before the Court of Milan through which the well-known former soccer player Gianni Rivera complained about the illicit use of some of his own images, for commercial purposes, by the RCS publishing group. The disputed photographs portrayed the former Italian champion in scenes of everyday life, and in particular: one image depicted Rivera getting off a plane holding an important trophy he had won with his team; another image was taken during his team's training camp; and another during an interview. In addition to these photographs, the plaintiff complained about the defendant's production of medals depicting his image.
Initially the Court of Milan ascertained wrongdoing on the part of the defendant, ordering them to pay damages, equitably settled at €50,000.00.This judgment was appealed before the Court of Appeal of Milan, which reaffirmed the previous decision as it did not consider Article 97 of the LDA to be applicable to the case in question, stating that the exemption due the notoriety of the person was applicable only in the event that the images had portrayed the person concerned in the context that made him famous, thus in this case during sports activities.
The defendant further appealed the decision before the Court of Cassation, complaining, on the one hand, of the violation or false application of Articles 10 of the Civil Code and 97 of the LDA, and on the other, lending acquiescence to the part of the previous judgment that condemned it to pay damages for the unlawful exploitation of the image of the former footballer caused by the medals produced. According to the plaintiff, the images did not degrade the honour or reputation of the well-known person and they had not been used for advertising purposes, but rather for educational and cultural purposes in line with the legitimate exercise of the right to report news.
The Supreme Court did not share the restrictive interpretation of Article 97 of the LDA made in the previous two levels of court.
The Italian Supreme Court overturned the contested decision through a detailed analysis of the rules of Article 97 LDA. According to the Supreme Court, the public interest in the life of a footballer, as a requirement for the proper exercise of the right to report the news, is not limited to sports activities but, at the same time, must be properly balanced with the individual's right to privacy. Article 97 of the LDA, according to the judges, makes it lawful to disclose photographic images of famous people, not only when they are depicted in the performance of the specific activity that has consigned them to public notoriety, but also when the photograph depicts them in the performance of ancillary and related activities, such as those taken with a trophy they had won or during a sports interview. On the other hand, images of the individual taken on private occasions without any connection with the activity that brought about their celebrity status and photographs harming their honour and reputation, or used for promotional purposes, remain outside the scope of the exemption. For these reasons, the judges set aside the appealed judgment with a referral of the case back to the Court of Appeal of Milan, which will have to consider again, this time taking into account the new indications given in that order.
