Here's a guest post from Valentina Torelli on a legal decision from Italy that has attracted a good deal of attention beyond that lovely country's borders. This is what she says:
A week ago, the IPKat reported
a fascinating judgment of the Court of Milan concerning the infringement of
Audrey Hepburn's publicity right by the Italian company Caleffi. As explained,
the Court of Milan admitted Audrey Hepburn's heirs' claim that Caleffi pay
compensatory damages and restore moral prejudice for having deployed Audrey
Hepburn's image in Breakfast at Tiffany's on postcards and brochures, without authorisation,
within the contest called “il diamante dei sogni” (the diamond of dreams). This
advertising material featured on Caleffi's website and as part of an
advertising insert of a well-known Italian magazine.
In particular, Audrey Hepburn's heirs argued that her right
of publicity was infringed under Article 96 of the Italian Copyright Law and
Article 10 of the Italian Civil Code. The first provision establishes that a
person's portrait cannot be displayed, reproduced or put in the market without
the person's consent – or the heir's consent – unless the requirements of
Article 97 are met: among others, the celebrity status of the person justifies
the lack of consent when the image's reproduction refers to facts, events,
ceremonies of public interest and when the reproduction of the image took place
in public circumstances.
In any event, the portrayal's display and commercialisation
are forbidden when they hinder the reputation, the honour and the dignity of
the person concerned. Likewise, Article 10 of the Italian Civil Code grants
physical persons the right to ask for the cessation of the unlawful display or
publication of their portrayal and for compensation in the form of damages,
when such uses occurred outside the cases provided by the law or when the
person's dignity and reputation are impaired.
The Court of Milan first held that Article 96 and 97 of the
Copyright Law could not resolve the dispute in that the alleged breach did not
encompass Audrey Hepburn's real image. The Court then applied Article 10 of the
Italian Civil Code, as the present case entailed the rearrangement of the
famous window-shopping scene in Breakfast at Tiffany's where Holly (alias
Audrey Hepburn) was looking at Tiffany's showcase.
The photographer of the advertisement depicted, partially
from behind, a model in a black dress, with lookalike Holly hairstyle, with
black gloves and sparkling jewellery while posing in front of a shop showcase.
All these circumstances were enough for the Court to find that there had been
an undue association between the photography's narrative subject matter and
Audrey Hepburn's image, although that image only evoked her ‘Holly’ character.
In allowing the claim, the Court of Milan applied old settled case law dating
back to 1984, 1992 and 1997, which had extended the physical person's right to
portrayal to elements not directly connected to that person such as clothing, decoration, make-up. The Court however considered that the Hepburn/Holly
persona was a public person in the audience's perception, this being an
evocative reference which required a request for consent to use the person's
image.
From a legal and photographic point of view, I am not
completely sure that the Court of Milan got it right in this case in that, when
I first read the judgment, I immediately wondered whether the judges had
confused Audrey Hepburn's and Holly's images, despite how much the public may hold
the actress performance in Breakfast at Tiffany's in high esteem.
As regards the legal perspective, the Holly character
originated from Truman Capote's creativity and it was later envisaged and
adapted in an audiovisual work under Blake Edward's direction. Within the
cinematographic conception of Holly a considerable degree of recognition should
be accorded to Mr Hubert de Givenchy, the fashion designer who shaped Audrey
Hepburn's image in and out of movie sets. Overall, Holly's features derive from
the commitment of all these great professionals in the realisation of the Breakfast
at Tiffany's masterpiece, produced by Jurow-Shepherd.
That said, it would have been different if Audrey Hepburn's
image had been used in Caleffi's advertisement, as happened
in Ryanair's campaign in which one of Charles Prince of Wales' photographs had
been used without authorisation to sponsor the suitability of its air fares. In
its decision of 3 March 2004 the Advertising Standard Authority censured the
advertisement in that it infringed the Prince's right to privacy because the
Royal Family's permission to use the photograph had not been requested
according to Article 13 of the Code of Advertising Practice.
The Audrey Hepburn case was also different from that
involving the legendary Italian songwriter Lucio Dalla, to which
the Court of Milan referred. In Dalla
the advertiser had used elements which delineated Dalla (left) by reference to symbols
that typified him, namely a knitted hat skullcap and a pair of metal-framed
spectacles. However, those features belonged to Dalla as a physical person who
had also a public recognition and fame.
In the Audrey Hepburn dispute, should there be any
infringement of a right to the portrayal of Holly? Who is the holder of Holly
character's image? Is there any right of portrayal available for fictional
characters? Eventually, these questions could be answered by reference to the
Italian Copyright Law, in particular to Article 46ff concerning copyright and
related rights in cinematographic works.
In relation to photography, there are a couple of
consideration to highlight. First, it could be argued that the photographer's
work in Caleffi's advertisement was an original photography and a piece of art
on its own, since its suggestive subject matter did not conclusively deprive
the image of copyright protection, the author's own creation could be found in
the form of a minimum of reinterpretation of the window-shopping scene.
I have found the case-law on which the Court of Milan relied
to assess the misuse of Audrey Hepburn's image quite outdated. All in all, I
think that the way the people's image should be treated and protected should
reflect the conditions of society today and that images should be treated in
accordance with the role that society assigns to them. Since the judgments
referred to in the present case were given, more than 20 years have passed and
our society has evolved into one that recognises the wisdom of communication
inspired and managed by images.
We are driven to make our choices and to think about everything
in terms of images and photographs, without stopping to think about what a
photograph actually represents. Photography, advertising photography included,
is more than a true and simple reproduction of someone or something: they are
now often the means by which a story is told and sometimes they are also works
of art on their own, like Elliott Erwitt's
photography for example.
Hubert de Givenchy hereLucio Dalla – Caruso hereRoland Barthe – Camera Lucida here
