Category: moral rights

The pictures of notorious people may be used on commercial websites without their consent (or, at least, this is what the court of Bologna said)

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In 1992, for the first time in more than 141 years of America’s Cup, an Italian boat was able to dispute the famous sailing race, so becoming famous all over the world as the first boat from a non-English speaking team to fight for the victory. Not only the most passionate sailors know that the boat was “Il Moro di Venezia”, Paul Cayard its skipper and that the sailing team was leaded by Raul Gardini.

This story was re-evoked in a proceeding for violation of image and personality rights started by Paul Cayard and the heirs of Raul Gardini before the Court of Bologna (full text here) to stop the unauthorized use of pictures, names and logos of Il Moro di Venezia and its protagonists on a commercial website (and related promotional Facebook pages) managed by a brand called “Il Moro di Venezia” that was unrelated to the sailing team of the famous boat.

According to the Court, however, the personality rights of an individual, that include the ways in which such individual is presented to the public, shall reflect the social perception that common people have of his/her personality and is not violated insofar as there is no misinterpretation of his/her intellectual ideological, ethic and professional heritage, as it emerges from his/her personal story as known.

Moreover, with particular reference to the names and images of Il Moro di Venezia and its team that were used on the website, the Court affirmed that the plaintiff had no right to stop their use on the basis that the contested elements were not used as trademarks and the link created with them on the resistants’ web pages was not abusive or detrimental of other rights.

The Court seems to recall the case law affirming that, besides misrepresentation, there is a further case when there could be violation of personality rights. Reference is made to the cases where the image and name of an individual are used in advertising in association with a brand, in so far as their use suggests a patronage to the brand which, instead, is lacking. A parallelism with trademark law could be found in the provisions inhibiting to deceive the public about the qualities of a sign and to create in the consumers’ mind an association between a notorious trademark and a product, thus taking an unfair advantage of said trademark.

This further case was, however, excluded by the Court of Bologna. It thus seems, by reading this decision, that anyone can make use of the names and images of third parties, also on a website aimed at promoting their commercial activity, when such person is depicted as the society expects him/her to be, suggesting a support of the related brand. This, even if a link between such person and the activity is created in the public in absence of any will from the depicted one or, as it was in the present case, with his/her express disapproval.

Many decision, on the contrary, affirmed that any individual has the right to control the uses of his/her name, image and any other aspect of his identity, even if the same were made available to the public with their previous consent, because the interested party could not approve their further use and, in particular, a commercial connection suggesting that he/she is connected to a brand (see Supreme Court decision of 6 December 2013, no. 27381; Court of Milan, decision of 21 May 2002 and Court of Rome, decision of 15 September 2007).

It’s a bit scary thinking about the consequence of the decision of the Court of Bologna that seems to be very permissive as to the possible uses of names and pictures of a person. It would be reasonable, we believe, extending the concept of distortive use as including the use on a commercial website that has not been approved by the person in question or, even worst, is expressively discouraged.

Court of Bologna, decision No. 2637/2015, 9 September 2015, Ivan Gardini, Eleonora Gardini, Maria Speranza Gardini and Paul Pierre Cayard v. Punta della Maestra S.r.l., Overseas Property LLC, Yacht Club Il Moro di Venezia and Rama S.n.c.

The Court of Turin rules about authorship in copyright: toward protection of advertising ideas through moral rights?

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A recent interim decision of the Court of Turin (full Italian text here) in a copyright dispute faced an interesting issue concerning the concept and scope of right to co-authorship, hence also a moral right pursuant to art. 20 of Italian Copyright law (Law No. 633/1941).

In a nutshell, Mr. Pagani, a former employee of the advertising company Leo Burnet, claimed to be the author of the “creative idea” from which Fiat advertisement “Fiat 500 cult yacht” (which was awarded, among others, the Cannes Lion 2014 at the International Festival of Creativity) was produced. He expressed this idea in a script exposed during a meeting at Leo Burnet. The proposal was discarded by Fiat. Four years later the script was revived and elaborated by two other employees of Leo Burnet to produce the advert Fiat 500 cult yacht. Credits on the advert were then attributed to these two employees.

Taking aside the question whether scripts may be autonomously protected as creative works, the Court of Turin considered that (i) advertisements can be the subject of copyright protection, as works characterized by innovative ideas or new form of expression of previous ideas; (ii) a video advert is a complex work, which includes visual and audio elements; (iii) conception of the advert is a crucial phase within the creative process: the project of the advert constitutes the “synthesis” to be developed during the production of the video; (iv) Mr. Pagani’s script (as mean of expression of the advert idea) included all the main elements that characterize the final advert: the promotional message, its way of expression (i.e., the particular environment, the narrator’s voice, the final advertising claim) and the targeted public.

In light of the above, Mr. Pagani’s script expressed more than a mere idea and contributed decisively to the final advert. Thus, the Court ordered to rectify the credits of the advert including Mr. Pagani among the authors and to notify the interested parties.

This decision is far from granting copyright protection to mere ideas, since protection of Mr. Pagani’s idea was conditioned to (i) the expression on a physical medium (i.e., the script) and (ii) the presence of all the main expressive elements of the final advert. However, it confirms a flexible view in acknowledging (co)authorship to creative contributions of a work (on a similar ground, see Court of Milan 21 October 2003, which considered co-author the scriptwriter who conceived the characters of a comic).

Francesco Banterle

 Court of Turin, 31 March 2015, Riccardo Pagani v. Leo Burnett Company S.r.l.