Sunday, 9 April 2017

Can you use the Pope's image on T-shirts and gadgets?

Well, the answer seems to be in the negative if the use has not been preventively authorised by the Holy See.

In a statement released earlier this year, the Secretariat of State warned against unauthorised use and misuse of the image of Pope Francis:

"The Secretariat of State includes among its responsibilities the protection of the image of the Holy Father, so that his message may reach the faithful intact, and so that his person is not exploited.

For the same reasons, the Secretariat of State safeguards all symbols and official coats of arms of the Holy See via the appropriate regulatory instruments at international level.

To render this protection increasingly effective for the aforementioned purposes and to stop any illegal situations that may arise, the Secretariat of State carries out systematic surveillance activities to monitor the ways in which the image of the Holy Father and the coats of arms of the Holy See are used, taking appropriate action where necessary."

According to Corriere della Sera, the Secretariat of State has hired a well-known law firm to monitor and repress any unauthorised third-party uses of the image of His Holiness. 

Overall, this move may be justified in light of the great popularity of Pope Francis among Catholic people. This, together with easy access to the Pope's photographs online, has likely resulted in an increasingly important (and profitable) market for memorabila carrying his image, says AP.

Pope Francis - The T-shirt
But what are the legal grounds for cease-and-desist letters sent on behalf of the Vatican in this specific instance?

Canon law and the laws directly adopted are the primary sources of the law for the Vatican, whose legal system also conform to the general principles of international law, as well as the provisions included in the main international treaties and agreements to which the Holy See is a party. 

However, for civil matters in respect of which there is no specific Vatican law - as long as they are compatible with Vatican laws and the principles of canon law, and excluding a number of areas (eg citizenship, marriage, adoption, employment law) - the Vatican observes the provisions contained in the Italian civil code.

[Those interested in the Vatican's system of sources of the law can find everything they need here]

As far as the unauthorised use of the Pope's image is concerned, this is likely to be handled as an image right issue [and - I dare to add - potentially also as an unfair competition issue, considering how broad and expansive Italian unfair competition is - see further below, particularly sub Article 2598 No 1].

Article 10 of the Italian civil code sets out the right to have one's own image protected. The provision states [WARNING: Kat-translation]

"If the image of a person, their parents, their spouse or their children is used or published outside the cases in which use or publication is allowed by the law, or in such a way as to cause prejudice to the honour or reputation of the person themselves or their said relatives, a judicial authority [read: judge], upon request of the person, can repress the violation and order payment of damages."

What is interesting is that in Italy image right protection is particularly strong. Courts have interpreted Article 10 generously, and even held that the infringement of one's own image right subsisted in situations in which one's own image had not been even used, but merely 'evoked'. 

Pope Francis - The keyring
Readers may remember that - recently - this is indeed what happened [Katpost here] in respect of an advertisement featuring a model that 'evoked' the image of Audrey Hepburn's character (Holly Golightly) in Breakfast at Tiffany's.

Of course, the statement of the Secretariat of State also mentions unauthorised use of the symbols and official coats of arms of the Holy See. Here it is likely that the provisions invoked would be those relating to trade mark protection, and also unfair competition within Article 2598 of the Italian civil code. 

As I mentioned, protection against unfair competition in Italy has followed an expansive approach, also because the relevant provision has a loose wording [see in particular Article 2598, No 3]. It in fact states that [WARNING: Kat-translation]:

“Standing the provisions on the protection of distinctive signs and patents, anyone who commits any of the following is liable for unfair competition: 

1.    uses names or distinctive signs that are likely to be confused with the names or distinctive signs lawfully uses by others, or slavishly imitates the products of a competitor, or with any other means commits acts that are likely to create confusion with the products and activity of a competitor;
2.    divulges information on or reviews of the products and activity of a competitor, that are likely to discredit or misappropriate the qualities of the products or activity of a competitor;
3.    uses directly or indirectly any other means that does not comply with the principles of professional fairness and is likely to harm third-party activities.”

This latest Vatican move is probably to be seen as part of a series of recent initiatives to protect the Holy See's IP [in 2011 the Vatican adopted its own copyright law]. It will be interesting to see whether cease-and-desist letters will suffice to put an end to unauthorised exploitation of the Pope's image, or court action will become necessary ... at least in certain instances.


[A Katpat to Shabtai Atlow (Cisco) for bringing this story to the IPKat's attention]

[This post was originally published on The IPKat on 9 April 2017]

No comments:

Post a Comment