Monday, 25 March 2019

Italian Supreme Court confirms approach to damage determination in image rights cases

Mirror, mirror on the wall,
who's the fairest of them all?
When it comes to the violation of one's own image rights, what damages can be awarded? Is it just the damage due to the moral prejudice caused or also damages for the economic prejudice suffered by the person whose rights have been violated? Does the fact that the claimant ruled out any possibility for third parties to use their image influence at all the identification of what damages are due, eg because there is no actual market for the licensing of the claimant's image?

These are all issues that the Italian Supreme Court recently considered in a case (sentenza 1875/19) concerning the violation of a well-known actor's image rights.

Unsurprisingly, the court confirmed its earlier approach that, when it comes to image rights violations, the damage that can be compensated is both of a moral and economic nature.

Let's see how the court reasoned.

Background

The Milan Court of First Instance accepted the request for compensation made by an actor in the context of proceedings brought against a magazine for publishing, without his consent, a number of photographs taken of him. 

Some of these photographs portrayed the claimant in an intimate setting together with a TV personality whom, at that time when the pictures were taken, he was in a relationship with. 

The court found that the defendant had violated the claimant’s image rights ex Article 10 of the Italian Civil Code and Article 96 of the Italian Copyright Act, thus rejecting the argument made by the defendant that publication of the pictures had been in the public interest, since the actor and his girlfriend were celebrities. The judge found that this behaviour was also against the Italian Privacy Code, and amounted to an undue interference with the claimant's private life (this being punishable as a crime under Article 615-bis of the Italian Criminal Code). 

The compensation had both an economic and moral component. The former (EUR 80,000) was calculated on the basis of the price of a hypothetical licence that the actor would have granted for the publication of the pictures in question. The latter (EUR 40,000) took into account the non-economic damage caused by the undue invasion of the claimant’s private sphere, which had caused him distress and psychological suffering. 

The defendant appealed. 

The Milan Court of Appeal upheld the decision at first instance, but found that this had erred in awarding also an economic damage. There could be no economic damage, as the claimant had expressly stated – through his spokesperson – that he excluded any consent to the publication of images of him in a private setting, thus ruling out any possibility of economic exploitation of his image. As such, there would be no market for licensing use of the images published by the magazine. As regards the non-economic component, the appellate court reduced it, on consideration that the intrusion would be less painful than what the first instance court had established. 

The actor appealed to the Italian Supreme Court (as IPKat readers may know, appeal to this court is only on points of law, not fact), over the exclusion – by the appellate court – of compensation of the economic damage, and the reduced compensation of the non-economic damage. With particular regard to the former, the appellant stated that, if not the ‘price of consent’ (for the hypothetical licence), the Milan Court of Appeal should have at least considered the number of copies that the magazine had sold, the profits made or the licensing fee requested by the actor in more recent instances.

What damages will be awarded?
The Supreme Court's decision 

The Supreme Court began its analysis by reviewing its earlier case law on violation of image rights. 

It started by noting that the unauthorized publication of a well-known person’s image causes a damage that requires compensation based, not on the undue invasion of one’s own private sphere, but rather the reasons why the claimant is well-known, in that it is because of that that there is a market for licensing use of one’s own image. 

It follows that the unauthorized publication of one’s own image causes an economic damage, which consists of missed licensing opportunities. 

The fact that the claimant excluded any consent whatsoever to the use of images of him in a private setting did not exclude that the unauthorized publication of that person’s images caused them a damage. 

The Supreme Court had already established this principle back in 2004. On this occasion, the Court added that the refusal to license the use of one’s own image is not tantamount to a waiver or even an abandonment of one’s own image rights. 

In addition, the economic character of the damage cannot be considered limited to the loss of hypothetical licensing revenue, but should also take into account the possible damage to one’s own professional reputation. 

In conclusion, in the event of unauthorized publication of one’s own image, the economic damage can be calculated by taking into account the price of an hypothetical licence that the claimant would grant for the use of their image or, lacking this, it can be determined equitably.

Comment

The decision of the Supreme Court appears correct. The very fact that one had denied licensing of their own image in the past does not mean that there is no market for such licensing activities or that in the future that person would not license use of their image. In this sense, it is not that because one has not given permission to undertake a restricted activity - the use of their image - they would lose the right to control all third-party interferences.

In addition, the economic damage suffered for the violation of one's own image rights is not limited to the loss of licensing revenues, but also the actual or potential harm to one's own professional reputation which, in turn, might have an effect on the licensing market for one's own image.

One might draw a parallel with the well-known Rihanna case in the UK (this being a country where self-standing image rights are not recognized). At first instance, Birss J found [Katpost here] that the unauthorized use of Rihanna's image on T-shirts sold by the defendant (Topshop) would amount to passing off. One of the (cumulative) requirements for an action in passing off is the subistence of a damage. According to the judge, this would lie not just in "sales lost to [Rihanna's] merchandising business", but also in the "loss of control over her reputation in the fashion sphere." 

The decision was upheld in appeal [Katpost here], which also cited extensively Laddie J's take in Irvine, in which the learned judge considered that "The law will vindicate the claimant's exclusive right to the reputation or goodwill. It will not allow others to so use goodwill as to reduce, blur or diminish its exclusivity."

[Originally published on The IPKat on 25 March 2019]

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