Beware of using photographs of Italian (cultural) beauties!

Italy is worldwide famous for its unique cultural heritage. Not surprisingly, Italian laws have been enacted in the years to regulate its exploitation, management and enjoyment by the public. The main law currently governing this subject matter is Legislative Decree no. 42/2004, setting the rules applicable for the protection and development of the Italian heritage.

It is such Decree that establishes the rules to follow to reproduce an asset eligible for protection as cultural heritage. According to article 107 of the Decree, “the Ministry of Cultural Heritage and the other public entities having rights on a cultural asset may authorize its reproduction and use, save […] for the provisions on copyright“. Article 108 identifies the rules applicable to calculate the amount of the fees to be paid for said reproduction, stating that “the concession fees and the consideration related to the reproduction of cultural assets shall be determined by the entity having right on the same asset, taking into account: a) the type of activity for which the concession is granted; b) the means and ways used to carry out the reproduction; c) the type and time of use of both the location and assets; d) the intended use of the reproduction and the economic benefits for the applicant“. No fee is due in case of reproductions made by individuals for personal use or for the purpose of study nor by private entities for cultural heritage development purposes, as long as the reproduction is carried out not for profit. The concession fees for each type of use are set by Ministerial Decree of 8 April 1994, without prejudice to the right of each entity or other administrative bodies to provide for different concession fees.

Although these rules have been set out years ago, almost no case law have dealt with unauthorized reproductions of the Italian heritage so far (and – we believe – not because of lack of violations but, most likely, for lack of interest in enforcing such rights). Overcoming such trend, two recent Italian decisions addressed the issue of commercially exploiting a cultural asset without having obtained the previous authorization from the entity in charge and, thus, without having paid the concession fee. More precisely, they determined the rules to follow when using photographs reproducing an asset which is eligible for protection under the Decree and, in particular, a work of art kept within a museum, and thus accessible only upon purchase of the ticket entrance, and one which is part of the city landscape and thus visible by anyone without restrictions.

  1. The first decision concerns the worldwide famous statue of David by Michelangelo. The statue is kept within the Uffizi Galleries in Florence, which are thus, according to the Decree, the legal entity having rights on the statue.

David

Uffizi Galleries sued a travel agency that was using on its promotional materials – including its brochures and website – photographs of the David and of the same Uffizi Galleries. According to Uffizi such uses constituted a violation of articles 107 and 108 of the Decree on the basis that (i) the statue was eligible for protection under the Decree, (ii) the use of an image embodying David shall be considered a reproduction under the Decree, (iii) such reproduction had never been authorized by Uffizi Galleries and (iv) no consideration was paid by the travel agency. The Court of Florence upheld Uffizi Galleries’ arguments and declared that the promotional use of the image representing the David made by the travel agency was unlawful under the Decree, granting an injunction to use the image of David in Italy and in Europe and ordering the immediate withdrawal from the market and destruction of any material embodying such image (see decision here).

It is worth noticing that the injunction granted to the Uffizi Gallery is not limited to the Italian territory but encompasses the whole Europe. The enforceability of the decision at stake outside Italy, however, is not immediate and triggers a number of doubts. The absence of supranational and international regulations applicable to the world cultural heritage excludes the possibility to automatically apply the decision abroad. Also, it is uncertain whether Regulation no 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments would be deemed applicable to this type of decisions as it applies only to civil and commercial matters, while administrative matters are expressly excluded. It seems odd that, in a field as international as culture, there are no instruments to effectively and easily stop the unlawful reproduction of an Italian cultural asset carried in a foreign country, with which Italy has not entered into a specific international agreement prohibiting such reproduction, unless a cross-border decision recognizable in such a State is granted.

2. The above legal framework is somehow complicated when the cultural asset is located in an open-air space. Any control of third parties reproductions is complex, not to say impossible. This is the case of the Teatro Massimo of Palermo, the biggest opera house in Italy, designed by the Italian architect Giovan Battista Filippo Basile at the end of the XIX century and reputed for its peculiar architecture and acoustic.

Teatro Massimo

Again, the Court of Palermo upheld the arguments of the Teatro Massimo Foundation that sued a bank for having used an image reproducing the theater palace (seen from outside, as in the picture above and decision here) in an advertising campaign on billboards and boards on the basis of articles 107 and 108 of the Decree. The bank questioned any violation of the Decree, stating that no rights can be claimed on reproductions of the outside architecture of a cultural asset which is part of the city landscape, that shall be considered in public domain as visible by anyone.

In such a scenario, the freedom of panorama doctrine comes into play. As known, its role is very different in the various jurisdictions. As far as Italy is concerned, the freedom of panorama is not recognized. Italian copyright law does not provide a specific exemption in this respect. Similarly, the Decree does not distinguish cultural heritage which is part of the Italian landscape from assets kept within closed areas, accessible only upon certain conditions. The Decree applies to both, as reiterated by the Ministry of Cultural Heritage in the interrogation available here.

Truth is that the application of the above rules leave room for many doubts: from the definition of “reproduction” to the limits to the entity’s discretion. That said, the above decisions seem to ring a bell to all entities having rights on Italian cultural heritage: Italian Courts could be favorable to recognize the right to concession fees in case of commercial reproductions, wherever made and independently from the type of asset concerned. This could be connected to the fact that concession fees appear to be aimed at granting an income to the entity having rights on the cultural asset, so to support its development, an ambition that is clearly stated in the Decree. Moreover, one of the Decree goals seems to be ensuring to the entities having rights a sort of control over third parties reproductions of the cultural asset, through the pre-authorization process. In this way, the entity may deny the authorization in case of uses that might result detrimental to the protection and development of the cultural heritage, as conceived by the single entity having rights.

Maria Luigia Franceschelli

Court of Florence, 26 October 2017, case No. 13758/2017 and Court of Palermo, 21 September 2017, case No. 4901/2017

 

New French law on retouching advertising images of fashion models

Last year, France enacted a new legislation (Law no. 2016-41 on the modernisation of our health system dated January 26, 2017, which came into force on January 1st, 2017) with the aim to encourage more socially responsible ads and avoid the use of artificially thin images of fashion models, whose view may induce eating disorders amongst teenage.

Article L. 2133-2 of the French Public Health Code (FPHC), as introduced by the new law, provides that “Photographs for commercial purposes of models whose physical appearance has been altered by an image processing software in order to slim or to thicken the model’s figure shall be accompanied by the words “photographie retouchée”.

Moreover, article R. 2133-6 of the FPHC burdens the advertiser with a best-efforts obligation to verify that the commercial photographs that he buys directly or through different service providers have not been modified by image processing softwares.

Only the modifications of silhouettes that affect the model’s weight seem to be concerned by the new rule.

The modalities of implementation of this new obligation have been specified by a Decree (Decree n°2017-738 of 4 May 2017 relating to photographs for commercial use of models whose appearance has been modified), that came into force on October 1st, 2017.

The Decree states that the mention “photographie retouchée” must be 
affixed in: “an accessible, easily legible and clearly differentiated way from the advertising or promotional message. The presentation of messages shall respect the rules and use of best practices as defined by the profession, notably by the Professional Advertising Regulatory Authority (ARPP)”.

Until now, the ARPP has only provided unofficial guidance on how and where the mention “photographie retouchée” should be affixed (at the “Réunion ARPP d’échanges et de lecture commune consacrée au Décret n° 2017-738 du 4 mai 2017” as of July 4, 2017) (link).

Without any clear guideline from the Regulator, nor settled market practices or court’s ruling, there is a high degree of uncertainty among the stakeholders over the correct way to comply with the law.

It follows from the wording of the law that the mention “photographie retouchée” should be (i) of sufficient size, (ii) of a colour contrasting with those used in the background and (iii) not drowned among other mentions.

Neither the Law nor the Decree lay down clear provisions on where exactly the mention must be displayed (on the photograph itself, near the product description or as a disclaimer on the bottom of the brand’s website). Given this lack of specifications, positioning the disclaimer on the photograph itself appears to be the safest solution to comply with the Regulation, while the only use of a general notice at the bottom of the webpage might be enough only if a clear reference to the relevant photos concerned is provided thanks to an asterisk or another pictogram (except maybe in the case that all photographs are retouched).

This new obligation applies to “photographs for commercial purposes” published through all types of media (cf. article R. 2133-4 of the FPHC which provides for a non-exhaustive list of media, including press or online publications, e-commerce marketplaces, social networks’ posts, printed ads, newsletter or correspondence), except for videos and television ads.

The Regulation does not specify the territorial scope of the rule. A cautious approach would be to assume that it applies to photographs that are accessible by French consumers. Indeed, it is settled case-law that national law applies if a violation is committed through a website available in the country of reference or otherwise addressing its audience, being irrelevant the place where the servers are located or where the company is registered (CA Paris, 19 March 2010, PIBD n°920 III p.391; TGI Paris, 6 December 2012, n°10/12560; Cour de cassation, Chambre commerciale, 17 January 2012, n°10-27311).

The Decree provides that responsible for complying with the duty of disclosure is the “advertiser” (“Annonceur”). Failure to comply with the Regulation can be sanctioned by a fine up to € 37,500, the amount of which may be increased up to 30% of the advertising expenses. No definition of “advertising expenses” is provided nor the Regulation specifies if this fine applies to each non-compliant photograph. However, it may be expected that judges shall apply the sanction once only for the entire offense and not for each challenged photograph. In this way, it would appear reasonable that the “30 percent of the cost of creating the advertisement” shall be calculated on all the expenses incurred in connection with the contentious advertising campaign.

Similar provisions exist from 2012 in Israel (Weight Limitation in the Modelling Industry Act, colloquially referred to as the “Model Act” or the “Photoshop™ Act”). Such law also prohibits advertisements which display fashion models (both male and female) who are underweight in accordance with measuring formulas (namely, the Body Mass Index) provided by the law.

In Italy, although we don’t have a rule specifically requiring this kind of disclosure when a model’s general appearance is altered, Article 10 of the Italian Self-regulatory Code of Marketing Communication (link) provides that marketing communication should respect human dignity in every form and expression. Moreover, Article 12 establishes that marketing communication should not contain representations that may lead consumers to be less cautious than usual or less watchful and responsible towards their own health and safety. These provisions remind to be careful when using the body image which is likely to cause pressure to conform to an unrealistic or unhealthy body shape, or which are likely to create body confidence issues, particularly among young people (cf. decisions 121/2007 or 6/2002).

Jacopo Ciani

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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)

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.